Jeffrey David. Fowler et al.

Patent Trials and Appeals Board

Jan 15, 2020

10578735 - (D) (P.T.A.B. Jan. 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.
10/578,735 05/18/2007 Jeffrey David Fowler 70333-US-REG-ORG-P 4467
26748 7590 01/15/2020
Syngenta Crop Protection LLC
Patent Department
PO Box 12257
9 Davis Drive
Research Triangle Park, NC 27709-2257
EXAMINER
ROSENTHAL, ANDREW S
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
01/15/2020 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):
global.patents@syngenta.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY DAVID FOWLER, HANS WALTER HAESSLIN,
MANFRED VOGT, and MICHELLE WEBER
____________

Appeal 2018-003968
Application 10/578,735
Technology Center 1600
____________

Before ULRIKE W. JENKS, JOHN E. SCHNEIDER, and
RYAN H. FLAX, Administrative Patent Judges.

JENKS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s
decision to reject claims as obvious. 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(a). Appellant identifies the real party in interest as Syngenta Crop
Protection, LLC. Appeal Br. 3.
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STATEMENT OF THE CASE
Claims 1–3, 5, 6, 10–12, and 14–25 are on appeal, and can be found in
the Claims Appendix of the Appeal Brief. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. An emulsifiable concentrate comprising:
a) a herbicidally effective amount of at least one
herbicide;
b) an amount, which is effective for antagonism of a
herbicide, of at least one safener, wherein the at least one
safener includes a quinoline derivative;
c) 30 to 35 % by weight of at least one oil adjuvant,
wherein said oil adjuvant comprises an alkyl ester of a
vegetable oil selected from the group consisting of a methyl
ester of a plant oil chosen from canola oil, olive oil, and
sunflower oil;
d) 5 to 70 % by weight of at least one water-immiscible
solvent sufficient to keep the herbicide a) and safener in
solution in the presence of the adjuvant; and
e) an emulsifying surfactant system in an amount
sufficient to form an oil-in-water emulsion when the
formulation is added to water;
with the proviso that (i) a) comprises a herbicidally
effective amount of at least one compound of formula I
(I)
wherein Hal is halogen,
Q is oxygen or sulfur, and
R is hydrogen, an alkali metal ion, or a quaternary C1-C4 -
alkylammonium group, a C1-C6 - alkyl group which is straight-
chain or branched-chain, and which is unsubstituted or
substituted by halogen, cyano, C1-C4 -alkoxy, C1-C4 -
alkylcarbonyl, C1-C4 -alkoxycarbonyl, carbamoyl or di-C1-C4-
alkylcarbamoyl, a C3 -C6 -cycloalkyl group, a C3 -C6 -alkenyl
group, which is straight-chain or branched-chain, and is
unsubstituted or substituted by halogen, a C3-C6 -alkynyl group,
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which is straight-chain or branched-chain, and is unsubstituted
or substituted by halogen, a group

wherein R1 and R2 separately are each a C1-C4-alkyl group, or
together form a 4- or 5-membered methylene chain, which can
be substituted by C1-C4-alkyl; (ii) b) comprises an amount,
which is effective for antagonism of a herbicide, of at least one
quinoline derivative safener selected from the group consisting
of cloquintocet; an alkali metal, alkaline earth metal, sulfonium
or ammonium cation of cloquintocet; and cloquintocet-mexyl;
or (iii) both (i) and (ii);
wherein a pesticidal composition formed by diluting the
emulsifiable concentrate to 1 % concentration in distilled water
has a pH in the range of 4.5 to 8.0; and
wherein the emulsifiable concentrate contains less than
2 % water.
Appeal Br. 33–34 (Claims Appendix).
REFERENCES
The prior art relied upon by Examiner is:
Name Reference Date
Sixl US 6,479,432 B1 Nov. 12, 2002
Haesslin WO 02/067682 A1 Sept. 6, 2002
REJECTIONS
Appellant requests review of the following grounds of rejection made
by Examiner:
I. Claims 1–3, 5, 6, 10–12, and 14–25 under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Haesslin.
II. Claims 1–3, 5, 6, 10–12, and 14–25 under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Sixl in view of Haesslin.
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I. Obviousness over Haesslin
Examiner finds that Haesslin teaches all elements of the invention but
for “the required pH, level of water, and an oil adjuvant in the claimed
ranges.” Ans. 7. Examiner concludes that “it would have been obvious to
have selected various combinations of various disclosed ingredients, such as
the composition described by the Examiner above, from within a prior art
disclosure, to arrive at compositions ‘yielding no more than one would
expect from such an arrangement.’” Ans. 9 (citing KSR Int'l Co. v. Teleflex
Inc., 550 U.S. 398, (“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”).
Appellant contends (1) that Haesslin “never guides one skilled in the
art to incorporate an emulsifying surfactant system into the organic phase”
(Appeal Br. 16); (2) that the combination of the organic and aqueous phase
in Haesslin does not result in a concentrate having 2% or less water (id.);
(3) that removal of water from the concentrate “would change the principle
of operation of the teaching of Haesslin” (id. at 18); and (4) hindsight (id. at
20–21).
The issue is whether the preponderance of evidence of record supports
Examiner’s conclusion that one of ordinary skill in the art would arrive at an
herbicide composition containing clodinafop-propargyl and cloquintocet-
mexyl having a water content of less than 2% based on the teaching of
Haesslin.
Findings of Fact
FF1. Haesslin teaches the herbicide clodinafop-propargyl. Haesslin 1.
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FF2. Haesslin teaches that clodinafop-propargyl is preferably used together
with the safener cloquintocet-mexyl. Id.
FF3. Haesslin teaches that clodinafop-propargyl and cloquintocet-mexyl
are chemically stable if the aqueous emulsion contains a buffer system
to maintaining the pH from 4 to 6. Id. at 5.
FF4. Haesslin teaches that “commercial products will preferably be
formulated as concentrates, the end user will normally employ
formulations diluted with water.” Id. at 12. The general formulation
of the herbicidal composition is as follows (recited in percent weight
of the total formulation):
Oil phase:
5-25 % clodinafop-propargyl
1-6% cloquintocet-mexyl
10-60 % solvent
1-5% oil phase stabiliser

Aqueous phase:
0.05-1 % thickener
3-8% anti-freeze
1-5 % surface-active compound and/or dispersing
agent
0.1-0.5% oil phase stabiliser
remainder water (buffered)
Id. at 12–13.
FF5. Haesslin teaches using solvents that are substantially insoluble in
water. Id. at 5. Solvents include “[m]ineral oils, fatty acid alkyl
esters or rapeseed oil C1-C5 alkyl esters, in which case preference is
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given to rapeseed oil methyl ester and rapeseed oil ethyl ester.” Id. at
10, see also 14 (Example C1 containing 38% rapeseed oil methyl
ester). “Especially preferred solvents are Exxate 700 (mixture of
aliphatic acetic acid C6-C8 esters, Essa Switzerland), benzyl acetate,
isobornyl acetate, benzoic acid methyl ester or Solvesso 200 (high-
aromatic-content hydrocarbon mixture, manufacturer: Exxon
Chemicals).” Id. at 6. Haesslin also teaches using “mixtures of those
solvents.” Id. at 5.
FF6. Haesslin teaches including “[s]urface-active substances and dispersing
agents.” Id. at 11.
Principle of Law
A conclusion of obviousness,
[R]equires more than a mere showing that the prior art
includes separate references covering each separate
limitation in a claim under examination. KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 418, 127 S.Ct. 1727, 167
L.Ed.2d 705 (2007). Rather, obviousness requires the
additional showing that a person of ordinary skill at the
time of the invention would have selected and combined
those prior art elements in the normal course of research
and development to yield the claimed invention. Id. at
421, 127 S.Ct. 1727.
Unigene Labs., Inc. v. Apotex, Inc., 655 F.3d 1352, 1360 (Fed. Cir. 2011).
Analysis
Haesslin teaches a composition comprising an herbicide and a safener,
including the specific combination of clodinafop-propargyl and
cloquintocet-mexyl. FF1–FF2. Haesslin also teaches that the combination
clodinafop-propargyl and cloquintocet-mexyl is stable in aqueous solution as
long as the pH is maintained in a range from 4–6. FF3. This teaching
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reasonably suggests adding a pH stabilizer to the formulation in order to
maintain the effectiveness of the herbicide. Haesslin teaches an oil and
water emulsion by combining the oil phase and aqueous phase. FF4.
Haesslin teaches using mixtures of solvents including rapeseed oil methyl
ester. FF5. Haesslin also teaches using oil phase stabilizers and surface-
active compounds. FF4, FF6.
Examiner recognizes that “Haesslin does not teach a single
embodiment comprising the components of claim 1 with the required pH,
level of water, and an oil adjuvant in the claimed ranges.” Ans. 7. Examiner
contends that it is the emulsion of Haesslin “which comprises a surface
active compound (aka surfactant), [and] reads on the instant claims.” Id. at
12. Examiner contends that based on the broad ranges provided in Haesslin
that the emulsion can contain water in the range 78.85– >0% water. Id. at 7.
Because “the emulsion is divided into an oil and an aqueous phase, it is
assumed that the latter comprises a positive amount of water (i.e. >0%),”
thus, the composition can contain an amount of water that is near zero. Id.
Appellant contends that Haesslin’s combination of the organic and
aqueous phase would not reasonably result in a concentrate having 2% or
less water because such a mixture “would change the principle of operation
of the teaching of Haesslin.” Appeal Br. 17–18. On this record, we find that
Appellant has the better position.
Haesslin acknowledges that the clodinafop-propargyl and
cloquintocet-mexyl are commercially available as emulsifiable concentrates.
See Haesslin 1, see also id. at 23 (emulsifiable concentrate EC100 known
under the trade name CELIO®). Haesslin differs from these prior art
herbicidal concentrates because the composition contains an aqueous
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emulsion created by combining an oil and water phase. FF4; Haesslin 1 (“It
has now been found, surprisingly, that the herbicidal activity of clodinafop-
propargyl can be considerably increased when that compound is applied in
the form of a particular aqueous emulsion.”). “To render a claim obvious,
prior art cannot be ‘vague’ and must collectively, although not explicitly,
guide an artisan of ordinary skill towards a particular solution.” Unigene
Labs, 655 at 1361 (citing Bayer Schering Pharm. AG v. Barr Labs., Inc., 575
F.3d 1341, 1347 (Fed.Cir.2009)). As Appellant points out, the lowest
concentration of water exemplified in Haesslin’s emulsions contains 26%
water in the final emulsion. Appeal Br. 17. It is unclear, based on Haesslin,
that the reduction in water to near zero in the aqueous component, as
suggested by Examiner, would allow for the formation of an emulsion that
improves the herbicidal activity of clodinafop-propargyl. Reviewing
Haesslin’s disclosure (at, e.g., 12–13), although it is not mathematically
impossible to achieve a formulation with water amounts approaching 0%,
each of Haesslin’s specific formulation examples have considerably more
water, for example, ~26% to ~60.7%. Haesslin 14–18. Thus, Haesslin alone
does not necessarily suggest reducing the amount of water in its
formulations to 2% or less. We, therefore, agree with Appellant that the
rejection of the claims based on Haesslin alone is not sufficiently supported
in the record.
Accordingly, we reverse the rejection relying on Haesslin alone.

II. Obviousness over Sixl and Haesslin
Examiner finds that Sixl teaches an herbicidal concentrate that
contains a solvent, a nonionic emulsifier, thickening agents and no water.
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Ans. 10. Examiner finds that Sixl teaches solvent mixtures that can include
rapeseed oil methyl ester or ethyl acetate. Id. at 11. Examiner concludes
that when the art teaches ranges that “‘overlap or lie inside the ranges in the
prior art’ a prima facie case of obviousness exists.” Id. (citing In re
Wertheim, 541 F.2d 257 (CCPA 1976); MPEP 2144.05 (I)). Examiner finds
that Sixl teaches the use of pH regulators, but acknowledges that Sixl does
not teach a pH range of 5-8. Id. Examiner relies on the teaching of Haesslin
to include a buffer system with compositions containing clodinafop-
propargyl and cloquintocet-mexyl. Id. Examiner finds that Haesslin teaches
that the combination of clodinafop-propargyl and cloquintocet-mexyl “has
been found to be especially stable in aqueous emulsions when comprising a
pH buffer system to maintain the pH between 4–6. Id. Examiner concludes
that based on the combined teachings of Sixl and Haesslin it would have
been obvious to include a pH regulator with the “concentrate of Sixl, which
can be diluted in water to treat crops.” Id. at 12.
Appellant contends that there is no reason to seek out the teachings of
Haesslin especially since “Sixl is directed to non-aqueous or low water
suspension concentrates.” Appeal Br. 26. “Appellant[] note[s] that the
teaching of Sixl does not disclose, teach or suggest any mixtures of rapeseed
oil methyl ester and Solvesso with clodinafop-propargyl and cloquintocet-
mexyl, and especially any mixture of rapeseed oil methyl ester (30%) and
Solvesso (30%).” Id. at 27.
The issue is whether the preponderance of evidence of record supports
Examiner’s conclusion that the combination of Sixl and Haesslin renders the
claimed emulsifiable herbicidal composition obvious.
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Findings of Fact
FF7. Sixl teaches suspension concentrates that comprise:
a) one or more solid herbicidally active compounds from
the group of the sulfonylureas in suspended form,
b) one or more active compounds which are partially or
completely dissolved in component c),
c) an organic solvent or solvent mixture,
d) one or more nonionic emulsifiers,
e) optionally one or more ionic emulsifiers,
f) optionally one or more thickeners or thixotropic
agents and no water or up to 30 percent by weight of
water in dissolved form.
Sixl 2: 55–65 (emphasis added), see id. 15:29–67.
FF8. Sixl teaches that component b includes “clodinafop propargyl.” Id.
7:31–32.
FF9. Sixl teaches the safener cloquintocetl-mexyl (S2-1), “and in particular
also (S2-1) in formulations comprising a sulfonylurea and, as further
herbicidally active compound, clodinafop-propargyl.” Id. 10:11–20.
The composition can contain 1–5% safener. Id. 10: 34.
FF10. Sixl teaches that the organic solvent can be a mixture of non-polar
solvents and polar-lipophilic solvents. See id. 11: 39. “The total
solvent content is, for example, in the range from 5 to 95% by weight,
preferably from 10 to 90% by weight, in particular from 40 to 80% by
weight.” Id. 12:51–53.
FF11. Sixl teaches that non-polar solvents include aromatic hydrocarbons
derived from benzene, aliphatic hydrocarbons, as well as aromatic
mineral oils from the Solvesso® series (Exxon) among others. See id.
10:50–63.
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FF12. Sixl teaches that polar-lipophilic solvents include among others
rapeseed oil, as well “as rapeseed oil fatty acid (C1-C8)-alkyl ester,
preferably rapeseed oil fatty acid methyl ester (= ‘rapeseed oil methyl
ester’) and rapeseed oil fatty acid ethyl ester (=‘rapeseed oil ethyl
ester’), in particular also those in a mixture with one of the aromatic
solvents mentioned.” Id. 11:24–28.
FF13. Sixl teaches the use of nonionic emulsifiers. “The proportion of
emulsifier (component d) is, for example, in the range from 0.5 to
40% by weight, preferably from 0.5 to 20% by weight, in particular
from 5 to 15% by weight, based on the weight of the formulation.”
Id. 14:7–10. Nonionic surfactants include “block copolymers of
ethylene oxide (EO) and propylene oxide (PO) of different chain
lengths” among others. Id. 13:37–38.
FF14. Sixl teaches the use of ionic emulsifiers. “The proportion of ionic
emulsifier (component e) is, for example, in the range of from 0 to
20% by weight, preferably from 0 to 10% by weight, in particular
from 0.1 to 10% by weight, based on the weight of the formulation.”
Id. 14: 38–41.
FF15. Sixl teaches that “water content of up to 2% by weight, in exceptional
cases of up to 10% by weight, in the suspension concentrate does not
adversely affect stability, or only to a small extent.” Sixl 3:38–42.
Sixl explains that water content is not detrimental to stability of the
active provided it does not lead to a w/o emulsion. See id. 3:42–55.
FF16. Sixl teaches the use of pH and viscosity regulators. Id. 3:9
FF17. Sixl teaches that concentrate is diluted before application to plants.
This can be effected by diluting an effective
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amount of the herbicidal preparation to the use
concentration, giving an aqueous suspension, and
applying the aqueous suspension to the harmful plants,
parts of plants, plant seeds, to the area on which the
plants grow or are to be controlled, or to an area of useful
plants under cultivation, which are to be protected against
harmful plants.
Id. 16: 36–42.
Analysis
Appellant contends that the prior art of record fails to suggest the
claimed emulsifiable concentrate. Appeal Br. 29. Examiner counters that
Sixl’s compositions contain emulsifiers, therefore, the concentrates are
reasonably interpreted to be emulsifiable concentrates. Ans. 19. The
contention is with the term “emulsifiable.”
“[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.” In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000). Therefore, we first turn to the
Specification to interpret the term “emulsifiable” as recited in in the
preamble and the body of the claim. The Specification describes “pesticidal
compositions obtainable by diluting the emulsifiable concentrates of the
present invention in a suitable amount of water to form an oil-in-water
emulsion.” Spec. 3:17–19. Thus, all that is required by the term
“emulsifiable” is that the concentrate as claimed is capable of forming an
emulsion when mixed with water, but there is no requirement that the
concentrate is stored as an emulsion.
Sixl teaches herbicidal compositions containing active sulfonylureas
in conjunction with other active compounds and safeners that are dissolved
in a solvent. FF7–FF9. Sixl teaches dissolving the herbicide in an organic
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solvent that can include mixtures of non-polar and polar solvents. FF10.
Non-polar solvents can include mineral oils from the Solvesso® series
(FF11), and polar solvents can include rapeseed oil fatty acid methyl ester.
FF12. Sixl teaches the use of nonionic and ionic emulsifiers. FF13–FF14.
Sixl further explains that the water content is preferably less than 2% by
weight and that during storage water-in-oil emulsions should be avoided.
FF15. Sixl also teaches the inclusion of pH regulators. FF16. Sixl
describes the production of herbicidal formulations that contain no water or
low water during storage but that are diluted before being applied to a plant.
FF17.
Examiner finds that Sixl teaches an herbicide concentrate that
includes solvent mixtures. Ans. 11. Examiner concludes that based on the
“suitable options for each genus” of solvent disclosed in Sixl, that it would
be prima facie obvious to arrive at a 50/50 mixture of rapeseed oil methyl
ester and Solvesso. Ans. 11 (“a mixture of rapeseed oil methyl ester or ethyl
acetate (30%) and Solvesso (30%) would be a prima facie obvious option”);
FF11–FF12. Examiner also explains that “Haesslin teaches a similar
composition [to Sixl] also useful as an herbicidal composition comprising
clodinafop-propargyl and cloquintocet-mexyl wherein the pH is buffered to
4-6, which overlaps with the claimed ranges,” which makes Haesslin and
Sixl an obvious combination. Ans. 11; see also supra FF1–FF6.
Appellant contends that there is no reason to seek out the teachings of
Haesslin because Sixl is directed to non-aqueous or low water suspension
concentrates, while Haesslin teaches aqueous emulsions. Appeal Br. 26.
We are not persuaded by Appellant’s non-analogous art argument.
“Two criteria have evolved for determining whether prior art is analogous:
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(1) whether the art is from the same field of endeavor, regardless of the
problem addressed, and (2) if the reference is not within the field of the
inventor’s endeavor, whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved.” In re Clay, 966
F.2d 656, 658–59 (Fed. Cir. 1992). Here, both Haesslin and Sixl are
directed at formulating herbicidal compositions. FF1–FF17. Thus, we agree
with Examiner that the references are reasonably directed to the same field
of endeavor even if the references approach the formulation of the same
herbicide differently, the product still has the same utility. See Ans. 19.
We are also not persuaded by Appellant’s argument that Sixl does not
teach an herbicide mixture, specifically, a mixture “of rapeseed oil methyl
ester (30%) and Solvesso (30%).” Id. at 27. “Disclos[ing] a multitude of
effective combinations does not render any particular formulation less
obvious. This is especially true because the claimed composition is used for
the identical purpose taught by the prior art.” Merck & Co. v. Biocraft
Laboratories Inc., 874 F.2d 804, 807 (Fed. Cir. 1989); Ans. 18. Here,
Examiner is relying, in-part, on Sixl’s teaching that the herbicides can be
formulated in a mixture of solvents ranging from 5–95% by weight.
Ans. 10; FF10–FF12. We agree with Examiner’s position that Sixl’s
disclosure of a mixture would reasonably encompass a 50/50 mixture of the
non-polar and polar solvents. See Ans. 11 (“of rapeseed oil methyl ester
(30%) and Solvesso (30%)”).
In the case where the claimed ranges “overlap or lie inside ranges
disclosed by the prior art” a prima facie case of obviousness exists. In re
Wertheim, 541 F.2d 257 (CCPA 1976). Sixl contemplates a solvent range
form 5–95%. FF10. Because the Sixl contemplates a mixture of solvents,
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we agree with Examiner that it is reasonable to conclude that it would have
been obvious for the mixture to be evenly split between the polar and non-
polar solvents taught. This would provide a range of 2.5-47.5% for each
type of solvent in the mixture. See FF10–FF12; Ans. 11 (“a mixture of
rapeseed oil methyl ester or ethyl acetate (30%) and Solvesso (30%) would
be a prima facie obvious option”). We, therefore, agree with Examiner that
the record supports the conclusion that mixtures of solvents containing
overlapping ranges renders the presently claimed solvent ranges obvious.
Accordingly, we affirm the rejection of claim 1 under pre-AIA
35 U.S.C. § 103(a) over Sixl and Haesslin. Claims 2, 3, 5, 6, 10, 11, and
14–25 were not separately argued and fall with claim 1. 37 C.F.R. § 41.37
(c)(1)(iv).
With respect to claim 12, Appellant contends that Haesslin generically
teaches a pH range of 4–6, but “the overall teaching of Haesslin guides one
skilled in the art to utilize a pH of 4.0” and therefore one of ordinary skill
would not be directed to higher pH values as recited in claim 12. Appeal Br.
31.
We are not persuaded by Appellant’s contention. Sixl teaches the
inclusion of pH regulators, but is silent with respect to a particular pH range.
FF16; see Ans. 18 (“The inclusion of a pH modifier implies that the pH can
be varied and Haesslin is applied for its teachings of an ideal pH level for
herbicidal concentrates such as the one in Sixl”). Examiner relies on
Haesslin for teaching a pH buffer system to maintain the pH between 4–6
when using the herbicide mixture containing clodinafop-propargyl and
cloquintocet-mexyl. Ans. 11; FF3. Here, Haesslin describes that the
stability of a clodinafop-propargyl and cloquintocet-mexyl in aqueous
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emulsion is surprising, but identifies the pH range of 4–6 as suitable for the
use with these compositions. Haesslin 5; FF3. Because it was known that
clodinafop-propargyl and cloquintocet-mexyl are not stable in aqueous
solutions, one of ordinary skill in the art would have been motivated to
ensure that a diluted concentrate would be maintained at the stabilizing pH
range of 4–6 as taught in Haesslin. See FF3. We find that the
preponderance of the evidence of record supports Examiner’s conclusion
that it would have been obvious to include pH stabilizers in Sixl’s
composition. Because the stabilizing pH range overlaps with the claimed
range we agree with Examiners conclusion that the claim is obvious. See
Wertheim, 541 F.2d 257.
Accordingly, we also affirm the rejection of claim 12.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5, 6,
10–12, 14–
25
103 Haesslin 1–3, 5, 6,
10–12, 14–
25
1–3, 5, 6,
10–12, 14–
25
103 Sixl, Haesslin 1–3, 5, 6,
10–12, 14–
25

Overall
Outcome
1–3, 5, 6,
10–12, 14–
25

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