Antoine Coutant et al.

Patent Trials and Appeals Board

Feb 19, 2020

14443255 - (D) (P.T.A.B. Feb. 19, 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.
14/443,255 05/15/2015 Antoine Coutant 085416-545873 3428
23416 7590 02/19/2020
POLSINELLI PC
(DE OFFICE)
1000 Louisiana Street
Fifty-Third Floor
HOUSTON, TX 77002
EXAMINER
ALLEY, GENEVIEVE S
ART UNIT PAPER NUMBER
1617
NOTIFICATION DATE DELIVERY MODE
02/19/2020 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):
DC-IPdocketing@polsinelli.com
uspt@polsinelli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTOINE COUTANT, MAUD-CÉCILE REVEILLAUD, and
BACHAR BLAL1
Appeal 2019-001368
Application 14/443,255
Technology Center 1600
Before DONALD E. ADAMES, ERIC B. GRIMES, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a plant
treatment composition, which have been rejected as obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies the real party in interest as AGRAUXINE. Appeal Br. 2.
We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a).
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STATEMENT OF THE CASE
“Dip treatment consists in coating the roots of a . . . plant[] with a
mixture that will aid regrowth during planting.” Spec. 1:8–11.
“[C]ommercial dip treatment mixes may contain . . . mycorrhizal fungi.” Id.
at 1:20–23. “A mycorrhiza is the result of symbiotic association between
fungi and plant roots.” Id. at 1:25–26. “Endomycorrhizae are the most
widespread form. Mention may in particular be made of endomycorrhizae
with arbuscules or arbuscular mycorrhizae (AMs).” Id. at 2:5–7.
“The invention relates in particular to the use of a branched
polysaccharide, and in particular xanthan gum, for preparing a composition
also containing an endomycorrhizal fungus (or another substance of
interest), and intended for root dip treatment/coating.” Id. at 9:24–28. The
“xanthan gum is preferably in a pulverulent form,” and “at least 80% of the
particles present in this powder have a size between 150 and 200 microns.”
Id. at 12:13–16. “[P]articles of 80 Mesh have a maximum size of 177
microns.” Id. at 12:30–31.
Claims 1–7 are on appeal. Claim 1, reproduced below, is illustrative:
1. A composition intended to be added to water for dip
treatment of a plant, the composition comprising xanthan
gum in a pulverulent form of particles having a size equal
or less than 177 microns and also a substance of interest,
the substance of interest being an endomycorrhizal
fungus or an antifungal microorganism, wherein said
composition is in dry form and forms a gel when added
to water.

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The claims stand rejected as follows:
Claims 1–4 and 6 under 35 U.S.C. § 103(a) as obvious based on Tusé2
and Yeh3 (Final Action4 3) and
Claims 5 and 7 under 35 U.S.C. § 103(a) as obvious based on Tusé,
Yeh, and Reddy5 (Final Action 6).
OPINION
Obviousness: Tusé and Yeh
The Examiner finds that “Tusé et al. is directed to plant root coatings”
and teaches “compositions compris[ing] a polymer, vesicular arbuscular
mycorrhizal (VAM) propagules, and a fungicide,” where the polymer can be
xanthan gum. Final Action 3–4. The Examiner also finds that,
With regards to the “dry” limitation of instant claim 1,
Tusé et al. teach kits for the manufacture of a plant growth-
promoting root coating composition comprising the
components: (a) a polymer that can form a non-phytotoxic
coating on plant roots, (b) VAM propagules, and (c) a fungicide
that selectively inhibits root infections by a pathogenic fungus
. . . , wherein said components are provided in predetermined
quantities that upon admixture of all the components and a
predetermined amount of water, an aqueous suspension or
solution is formed capable of forming said root coating.
Id. at 4.
The Examiner finds that Tusé does not teach that “the xanthan gum is
in a pulverulent form of particles having a size of less than 177 microns,”

2 Tusé et al., US 5,344,471, issued Sept. 6, 1994.
3 Yeh US 5,552,462, issued Sept. 3, 1996.
4 Office Action mailed April 19, 2018.
5 Reddy et al., US 2009/0308121 A1, published Dec. 17, 2009
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but Yeh teaches a “composition including cationic polymers and anioinic
[sic, anionic] xanthan gum that can be used in agricultural chemicals.” Id. at
4–5. “Yeh teaches that for easy handling and ready dispersibility, the gums
should have a particle size of less than about 100 mesh.” Id. at 5. (Particles
of 100 Mesh have a maximum size of 149 microns. Spec. 12:33.)
The Examiner concludes that it would have been obvious “to
incorporate xanthan gum of Tusé et al. in a particle size of less than 150
microns, as instantly claimed, with a reasonable expectation of success,”
because “Yeh teaches that such size is advantageous for the following
reasons: easy handling and ready dispersibility.” Id. at 6.
We agree with the Examiner that the disclosures of Tusé and Yeh
support a prima facie case of obviousness. Tusé teaches that “[v]esicular
arbuscular mycorrhizal (VAM) fungi enter into a beneficial symbiotic
relationship with many plants. These fungi confer on the host plant
resistance to plant pathogens and aid the plant in obtaining nutrients . . .
from the soil.” Tusé 1:19–23.
Tusé discloses that “plant roots, coated by treatment with an aqueous
composition which contains a polymer formulation, VAM propagules and a
fungicide that selectively inhibits pathogenic fungal infection, show growth
that is superior to that observed after treatment with either VAM or
fungicides alone.” Id. at 2:42–47. “‘VAM propagules’ refers to any
infectious agent or composition capable of inducing VAM infection in plant
roots,” including “VAM spores, VAM hyphae, VAM hyphal tips, and
VAM-infected root tissue.” Id. at 5:14–18. “The VAM propagules could
comprise, for example, dried spores or hyphae.” Id. at 7:26–27.
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Tusé discloses that polymers suitable for use in its composition
include xanthan gum. Id. at 4:32–45. “Fungicides employed in these
compositions can be any agent, including a chemical or biological agent, that
selectively inhibit[s] the infection or growth of a plant pathogen or fungus
relative to VAM.” Id. at 5:61–64. “Particularly preferred biological
fungicides are microorganisms such as bacteria that produce siderophores.
Such bacteria are well known in the art.” Id. at 6:18–20.
Tusé discloses that its
invention includes kits . . . comprising the components: (a) a
polymer that can form a non-phytotoxic coating on plant roots,
(b) VAM propagules, and (c) a fungicide . . . , wherein said
components are provided in predetermined quantities that upon
admixture of all of the components and a predetermined amount
of water, an aqueous suspension or solution is formed.
Id. at 3:16–26. “The kit will generally comprise a single package comprising
one or more containers holding predetermined quantities of polymer, VAM
propagules, and fungicide. Each of the three components can be held
individually in separate containers, or two or more of the components could
be combined into a single container.” Id. at 7:12–18. “Depending on the
particular polymer, VAM propagules and fungicide selected, the
components could be dry or liquid formulations.” Id. at 7:21–23.
Thus, Tusé suggests kits comprising both the endomycorhizal fungus
and the antifungal microorganism recited in claim 1, along with xanthan
gum. Tusé does not expressly disclose xanthan gum particles with a size of
177 microns or less. However, Yeh discloses polymer compositions
comprising a cationic polymer and anionic substituted xanthan gum, that are
suitable for agricultural applications. Yeh 3:32–37, 3:50–53. “[T]he cationic
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polymer and the anionic xanthan gum may be mixed together in a dry state
in the desired ratio and then added to the water.” Id. at 7:25–27. “For easy
handling and ready dispersibility, the gums should have a particle size of
less than about 100 mesh [i.e., ≤ 149 microns, Spec. 12:33].” Id. at 7:27–29.
Based on Tusé and Yeh, it would have been obvious to combine
xanthan gum, VAM propagules (e.g., spores), and antifungal bacteria, in
order to form a kit for making an aqueous suspension or solution when
added to water. It would have been obvious to use dry forms of all three
components, because Tusé suggests using either dry or liquid components
(id. at 7:21–23) and suggests a kit requiring only the addition of water (id. at
7:10–12). Yeh provides a reason to use xanthan gum particles less than 177
microns in size, because it discloses that xanthan gum particles of 100 mesh
(149 microns) or smaller provide easy handling and ready dispersibility in
water. Tusé expressly suggests combining all three components in a single
composition, because it states that “two or more of the components could be
combined into a single container.” Tusé 7:16–18 (emphasis added). “Two or
more” of three components means two or three of the components. The
teachings of Tusé and Yeh therefore would have made obvious the
composition of claim 1.
Appellant argues that Tusé describes kits comprising a polymer, VAM
propagules, and a fungicide, “‘wherein said components are provided in
predetermined quantities that upon admixture of all of the components and a
predetermined amount of water, an aqueous suspension or solution is
formed.’” Appeal Br. 7 (quoting Tusé 3:16–29). Appellant argues that this
language “specifically describes admixing the predetermined quantities of
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‘all of the components.’ If the predetermined quantities of the components
were already mixed together in a single composition, there would be no need
to admix them.” Id. Thus, Appellant argues, Tusé does not disclose a “kit”
comprising all three of its components.
This argument is unpersuasive because, as discussed above, Tusé
suggests combining “two or more” of the polymer, VAM propagules, and
fungicide in a single container, and thus expressly suggests a kit, or
composition, comprising all three components that can be mixed with water
to form an aqueous solution or suspension. See Tusé 7:9–18.
Appellant argues that “Tuse specifically refers to kits having multiple
containers, each holding predetermined quantities of polymer, VAM
propagules, and fungicide. See, e.g., Tuse, col. 7, lines 12–15.” Appeal Br. 8.
While Appellant correctly summarizes the cited part of Tusé, Appellant’s
position ignores the immediately following sentence, which suggests
combining “two or more” of the three components in a single container.
Appellant’s argument on this point is therefore unpersuasive.
Appellant also argues that “the kits of Tuse are not specific to dry
compositions, nor do they require the use of xanthan gum.” Appeal Br. 9.
Appellant points out that “Tuse does not set forth an example of a kit
containing only dry components.” Id.
These arguments are also unpersuasive, because the rejection is based
on the obviousness of the claimed composition based on the entirety of the
disclosures of Tusé and Yeh. As discussed above, Tusé discloses that
xanthan gum is suitable for use in its kits, and Yeh discloses that dry xanthan
gum particles of less than 100 mesh (< 149 microns) provide easy handling
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and ready dispersibility in water, which would have provided a reason to use
them in Tusé’s composition. Tusé also suggests that each of the components
of its kits can be dry or liquid. A reference’s teachings are not limited to its
examples. 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.”).
Appellant also argues that
[t]he specification includes data showing that different
polymers and gums are not equivalent to xanthan gum. See,
e.g., Example 1. The data shows that xanthan gum provides
specific beneficial characteristics to the claimed compositions,
for example, in terms of viscosity, solubility, and storage
properties (both on the shelf and on coated roots), which was
not attained with other polymers and gums. See, e.g., Examples
2, 3, 5, and 9.
Appeal Br. 10. Appellant argues that the Specification “compare[s] the
claimed ‘dry’ composition (made with xanthan gum) with comparative ‘dry’
compositions with different gums and polymers (e.g., guar, locus bean gum,
alginate). Tuse puts forward a long list of gums and polymers, but does not
combine them with propagules to form a ‘dry’ composition, as claimed.” Id.
Appellant argues that, therefore, the Specification’s data shows “proper side-
by-side comparisons.” Id.
We have considered the evidence that Appellant points to but
conclude that a preponderance of the evidence weighs in favor of
obviousness. The cited evidence from the Specification suffers from at least
two defects, as evidence of nonobviousness. First, no basis is provided for
concluding that the results were unexpected. Appellant’s brief states that
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xanthan gum provides “unexpected benefits” (Appeal Br. 11), but
“[a]ttorneys’ argument is no substitute for evidence.” Johnston v. IVAC
Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). See also Pfizer, Inc. v. Apotex,
Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007) (“[B]y definition, any superior
property must be unexpected to be considered evidence of non-
obviousness. . . . Pfizer’s evidence must fail because the record is devoid of
any evidence of what the skilled artisan would have expected.”).
Yeh, on the other hand, provides evidence that the results in the
Specification would not have been surprising. Yeh states that “[o]ne natural
gum that has been widely used as a suspending and viscosity agent is
xanthan gum. Aqueous sols of xanthan gum are plastic in nature and exhibit
higher gel strengths than sols of most other gums.” Yeh 1:20–24. Appellant
has not explained why the Specification’s finding that Xanthan 80 provides a
“[v]iscous and gelling gum” (Spec. 17:12–15) was unexpected in view of
xanthan gum’s known properties.
In addition, we do not agree with Appellant’s position that the
Specification shows a comparison to embodiments that are closer to the
claimed composition than those exemplified by Tusé. See Appeal Br. 11.
The Specification compares polymers based on their “gelling power” when
mixed in water at 1% and 0.2%. Spec. 16:35 to 18:7. These polymer
suspensions are therefore comparable to the aqueous suspension described in
Tusé’s Example 1. Tusé 10:58 to 11:55. Tusé’s exemplary suspension
included polyvinylalcohol as the polymer. Id. at 10:62. The polymers used in
the Specification’s examples do not include polyvinylalcohol, or any of the
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other polymers disclosed by Tusé (id. at 4:32–47), and therefore do not
include a comparison to the closest prior art.
In summary, we conclude that a preponderance of the evidence of
record supports the Examiner’s conclusion that claim 1 would have been
obvious based on Tusé and Yeh. Claims 2–4 and 6 fall with claim 1 because
they were not argued separately. 37 C.F.R. § 41.37(c)(1)(iv)(2013).
Obviousness: Tusé, Yeh, and Reddy
Claims 5 and 7 stand rejected under 35 U.S.C. § 103(a) based on
Tusé, Yeh, and Reddy. Final Action 6. Appellant has waived arguments
directed to the combination of Reddy with the references discussed above.
See Appeal Br. 11. We therefore affirm the rejection of claims 5 and 7 for
the reasons set out by the Examiner in the Final Action. See 37 C.F.R.
§ 41.37(c)(1)(iv) (Appeal Brief must contain “[t]he arguments of appellant
with respect to each ground of rejection.”); Hyatt v. Dudas, 551 F.3d 1307,
1314 (Fed. Cir. 2008) (“In the event of such a waiver, the PTO may affirm
the rejection of the group of claims that the examiner rejected on that ground
without considering the merits of those rejections.”).

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 6 103(a) Tusé, Yeh 1–4, 6
5, 7 103(a) Tusé, Yeh, Reddy 5, 7
Overall
Outcome
1–7
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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