Timothy M. Martin et al.

Patent Trials and Appeals Board

Aug 14, 2019

14502251 - (D) (P.T.A.B. Aug. 14, 2019)

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.
14/502,251 09/30/2014 Timothy M. Martin 60932-USA 9591
111801 7590 08/14/2019
FMC / Fox Rothschild LLP
2929 Walnut Street
Philadelphia, PA 19104
EXAMINER
FISHER, MELISSA L
ART UNIT PAPER NUMBER
1611
NOTIFICATION DATE DELIVERY MODE
08/14/2019 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):
Andrea.Small@fmc.com
ipdocket@foxrothschild.com
patents@fmc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte TIMOTHY M. MARTIN, SHAWN GRANT, NEIL DESTEFANO,
ADAM PRESTEGROD, and MICHAEL HARPER
__________

Appeal 2018-006739
Application 14/502,2511
Technology Center 1600
__________

Before JOHN E. SCHNEIDER, RACHEL H. TOWNSEND and
DAVID COTTA, Administrative Patent Judges.

TOWNSEND, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
foamable liquid agricultural formulation, which have been rejected as failing
to comply with the written description requirement and/or as being obvious.
Oral argument was heard on August 1, 2019. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm-in-part.

1 The Appellant is the Applicant FMC Corporation, which identifies itself as
the real party in interest. (Appeal Br. 2.)
Appeal 2018-006739
Application 14/502,251

2
STATEMENT OF THE CASE
“Many agricultural actives are applied to crops or soil as sprays. . .
The active ingredient is typically added to a tank and mixed with a diluent
such as water before being sprayed on the field or crop.” (Spec. ¶ 5.) “After
dilution, using currently-known formulations and techniques, a typical
application rate can be from approximately 3–25 gallons/acre. Application
to 500 acres at a typical rate thus requires 1500–12,500 gallons of liquid.”
(Id.) “A tractor carrying a full load of seeds or other plant-generative.
material cannot accommodate such a high volume of liquid.” (Id. ¶ 6.)
“[A]dvances are needed that can reduce the volume of agricultural
formulation needed to treat a particular area of field.” (Id. ¶ 7.)
Also, actives that are sprayed “are vulnerable to spray drift and cannot
be applied precisely.” (Id. ¶ 5.) “[A]dvances in increasing the efficacy of a
given volume of an agricultural formulation, as well as advances that allow
more precise delivery of an agricultural formulation to the area where it can
be most effective” is needed. (Id. ¶ 7). Appellant’s invention is directed at
agrochemical formulations to address the foregoing problems.
Claims 1, 41, 43, 45, 46, 48–53, 76–84, and 87–90 are on appeal2.
Claim 1 is representative and reads as follows:
1. A foamable liquid agricultural formulation comprising:
an agriculturally active ingredient selected from the
group consisting of insecticides, pesticides, fungicides,
herbicides, fertilizers, plant growth regulators, plant growth
promoters and combinations of two or more thereof,

2 Claims 54–58 and 60–75 remain pending, but are withdrawn from
consideration. (Final Action 1.)
Appeal 2018-006739
Application 14/502,251

3
one or more foaming agents in a total of about 5 % to
about 30% by weight; and
one or more foam stabilizers in a total of about 1% to
about 15% by weight;
wherein the foamable liquid agricultural formulation
contains water, up to about 45% by weight based on the total
weight of the liquid agricultural formulation, and
wherein said fungicides are selected from:
B1) azoles selected from the group consisting of
bitertanol, bromuconazole, cyproconazole, difenoconazole,
diniconazole, enilconazole, epoxiconazole, fluquinconazole,
fenbuconazole, flusilazole, flutriafol, hexaconazole,
imibenconazole, ipconazole, metconazole, myclobutanil,
penconazole, propiconazole, prothioconazole, simeconazole,
triadimefon, triadimenol, tebuconazole, tetraconazole,
triticonazole, prochloraz, pefurazoate, imazalil, triflumizole,
cyazofamid, benomyl, carbendazim, thia-
bendazole,fuberidazole, ethaboxam, etridiazole and
hymexazole, azaconazole, diniconazole-M, oxpoconazol,
paclobutrazol, uniconazol, 1-(4-chloro-phenyl)-2-([1,2,4
]triazol-1-y I )-cycloheptanol and imazalilsulfphate; or
B2) strobilurins selected from the group consisting of
azoxystrobin, dimoxystrobin, enestroburin, fluoxastrobin,
kresoxim-methyl, methominostrobin, orysastrobin,
picoxystrobin, pyraclostrobin, trifloxystrobin, enestroburin,
methyl (2-chloro-541-(3-methylbenzyloxyimino)ethyl]benzyl)-
carbamate, methyl (2-chloro-5-[l-(6-methylpyridin-2-
ylmethoxyimino)ethyl]benzyl)carbamate and methyl 2-(ortho-
(2,5-dimethylphenyloxymethylene)- pheny1)-3-
methoxyacrylate, 2-(2-( 6-(3-chloro-2-methylphenoxy)-5-
fluoro-pyrimidin-4-yloxy )-phenyl )-2-methoxyimino-N-methy
l-acetamide and 3-methoxy-2-(2-(N-( 4-methoxy-phenyl)-
cyclopropanecarboximidoylsulfany1-methy1)phenyl)-acrylic
acid methyl ester; or
B3) carboxamides selected from the group consisting of
carboxin, benalaxyl, benalaxyl-M, fenhexamid, flutolanil,
furametpyr, mepronil, metalaxyl, mefenoxam, ofurace,
Appeal 2018-006739
Application 14/502,251

4
oxadixyl, oxycarboxin, penthiopyrad, isopyrazam, thifluzamide,
tiadinil, 3 ,4-dichloro-N-(2-cyanophenyl)isothiazole-5-
carboxamide, dimethomorph, flumorph, flumetover,
fluopicolide (picobenzamid), zoxamide, carpropamid,
diclocymet, mandipropamid, N-(2- (443-(4-chloropheny l)prop-
2-ynyloxy]-3-methoxypheny l)ethyl)-2- methanesulfonyl-
amino-3-methylbutyramide, N-(2-( 4-[3-(4-chloro-phenyl)prop-
2-ynyloxy]-3-methoxy-phenyl)ethy1)-2-ethanesulfonylamina-
3-methylbutyramide, methyl 3-(4-chlorophenyl)-3-(2-
isopropoxycarbonyl-amino-3-methyl-butyrylamino )propionate,
N-( 4'-bromobipheny1-2-yl)-4-difluoromethyl A-
methylthiazole-6-carboxamide, N-(4'-trifluoromethyl- biphenyl-
2-yl)-4-difluoromethyl-2-methylthiazole-5-carboxamide, N-(4'-
chloro-3'-fluorobiphenyl-2-yl)-4-difluoromethyl-2-methyl-
thiazole-5-carboxamide, N-(3 \4'-dichloro-4-fluorobiphenyl-2-
yl)-3-difluoro-methyl-l-methyl-pyrazole-4-carboxamide, N-
(3',4'-dichloro-5-fluorobiphenyl-2-yl)-3-difluoromethyl-l-
methylpyrazole-4-carboxamide, N-(2-cyano-phenyl)- 3,4-
dichloroisothiazole-5-carboxamide, 2-amino-4-methyl-thiazole-
5-carboxanilide, 2-chloro-N(1,1,3-trimethyl-indan-4-yl)-
nicotinamide, N-(2- (l ,3-dimethylbutyl)-phenyl)-1,3-dimethyl-
5-fluoro- l H-pyrazole-4-carboxamide, N-( 4'-chloro-3',5-
difluoro-biphenyl-2-yl)-3- difluoromethyl-l-methyl-l H-
pyrazole-4-carboxamide, N-(4'-chloro-3',5-difluoro-biphenyl-2-
yl)-3-trifluoromethyl-l-methyl-1H-pyrazole-4-carboxamide, N-
(3',4'- dichloro-5-fluorobiphenyl-2-yl)-3-trifluoromethyl-l-
methyl-1H-pyrazole-4- carboxamide, N-(3',5-difluoro-4'methyl-
biphenyl-2-yl)-3-difluoromethyl-l- methyl-1 H-pyrazole-4-
carboxamide, N-(3',5-difluoro-4'-methyl-biphenyl-2-yl)-3-
trifluoromethyl-l-methyl-1H-pyrazole-4-carboxamide, N-(cis-2-
bicyclopropyl-2-yl-phenyl)-3-difluoromethyl-l-methyl-IH-
pyrazole-4-carboxamide, N-(trans-2-bicyclopropyl-2-yl-
phenyl)-3-difluoro-methyl-l-methyl-l H-pyrazole-4-
carboxamide, fluopyram, N-(3-ethyl-3,5-5- trimethyl-
cyclohexyl)-3-formylamino-2-hydroxy-benzamide,
oxytetracyclin, silthiofam, N-(6-methoxy-pyridin-3-
yl)cyclopropanecarboxamide, 2- iodo-N-phenyl-benzamide, N-
(2-bicyclo-propyl-2-yl-phenyl)-3- difluormethyl-l-
methylpyrazol-4-ylcarboxamide, N-(3',4',5'-trifluorobiphenyl-2-
Appeal 2018-006739
Application 14/502,251

5
yl)-l,3-dimethylpyrazol-4-ylcarboxamide, N-(3',4',5'-
trifluorobipheny 1-2-yl)-1,3-dimethy1-5-fluoropyrazol-4-yl-
carboxamide, N-(3',4',5'-trifluorobiphenyl-2-yl)-5-chloro-1,3-
dimethylpyrazol-4-ylcarboxamide, N-(3',4',5'-trifluorobiphenyl-
2-yl)-3- fluoromethyl-1-methylpyrazol-4-ylcarboxamide, N-
(3',4',5'- trifluorobiphenyl-2-yl)-3-(chlorofluoromethyl)1-
methylpyrazol-4-ylcarboxamide,N-(3',4',5'-trifluorobiphenyl-2-
yl)-3-difluoromethyl-1-methylpyrazol-4-ylcarboxamide, N-
(3',4',5'-trifluorobiphenyl-2-yl)-3-difluoromethyl-5-fluoro-l-
methylpyrazol-4-ylcarboxamide, N-(3',4',5'-trifluorobiphenyl-2-
yl)-5-chloro-3-difluoromethyl-1-methylpyrazol-4-
ylcarboxamide, N-(3',4',5'-trifluorobipheny 1-2-yl)-3-
(chlorodifluoromethyl)-1-methylpyrazol-4-ylcarboxamide, N-
(3',4',5'-trifluorobipheny 1-2-yl)-l-methyl-3-
trifluoromethylpyrazol-4-ylcarboxamide, N-(3',4',5'-
trifluorobiphenyl-2-yl)-5-fluoro-l-methyl-3-
trifluoromethylpyrazol-4-ylcarboxamide, N-
(3',4',5'trifluorobiphenyl-2-yl)-5-chloro-l-methyl-3-
trifluoromethylpyrazol-4-ylcarboxamide, N(2',4',5'-
trifluorobiphenyl-2-yl)-1,3-dimethylpyrazol-4-ylcarboxamide,
N-(2',4',5'trifluorobiphenyl-2-yl)- 1,3-dimethyl-5-fluoropyrazol-
4-ylcarboxamide, N-(2',4',5'trifluorobiphenyl-2-yl)-5-chloro-
1,3-dimethylpyrazol-4-ylcarboxamide, N-
(2',4',5'trifluorobiphenyl-2-yl)-3-fluoromethyl-l-methylpyrazol-
4-ylcarboxamide, N-(2',4',5'trifluorobiphenyl-2-yl)-3-
(chlorofluoromethyl)-1-methylpyrazol-4-
ylcarboxamide,N(2',4',5'-trifluorobiphenyl-2-yl)-3-
difluoromethyl-l-methylpyrazol-4-ylcarboxamide, N(2',4',5'-
trifluorobiphenyl-2-yl)-3-difluoromethyl-5-fluoro-1-
methylpyrazol-4-ylcarboxamide, N-(2',4',5'-trifluorobiphenyl-2-
yl)-5-chloro-3-difluoromethyl-lmethylpyrazol-4-
ylcarboxamide, N- (2',4',5'-trifluorobiphenyl-2-yl)-3-
(chlorodifluoromethyl)-1-methylpyrazol-4-ylcarboxamide, N-
(2',4',5'-trifluorobipheny 1-2-yl)-1-methyl-3-
trifluoromethylpyrazol-4-ylcarboxamide, N-(2',4',5'-
trifluorobiphenyl-2-yl)- 5-fluoro-l-methyl-3-
trifluoromethylpyrazol-4-ylcarboxamide, N-
(2',4',5'trifluorobiphenyl-2-yl)-5-chloro-l-methyl-3-
trifluoromethylpyrazol-4-ylcarboxamide, N(3',4'-dichloro-3-
Appeal 2018-006739
Application 14/502,251

6
fluorobiphenyl-2-yl)-l-methyl-3- trifluoromethyl-1H-pyrazole-
4-carboxamide, N-(3',4'-dichloro-3- fluorobiphenyl-2-yl)-l-
methyl-3-difluoromethyl-1H-pyrazole-4-carboxamide, N-(3',4'-
difluoro-3-fluorobiphenyl-2-yl)-l-methyl-3-trifluoromethyl-1H-
pyrazole-4-carboxamide, N-(3',4'-difluoro-3-fluorobiphenyl-2-
yl)-l-methyl-S-difluoromethyl-l H-pyrazole-4-carboxamide, N-
(3'-chloro-4'-fluoro-3-fluorobiphenyl-2-yl)-l-methyl-3-
difluoromethyl-l H-pyrazole-4-carboxamide, N-(3',4'dichloro-4-
fluorobipheny 1-2-y I )-1-methy1-3-trifluoromethy1-1 H-
pyrazole-4-carboxamide,N-(3',4'-difluoro-4-fluorobiphenyl-2-
yl)-l- methyl-S-trifluoromethyl-1 H-pyrazole-4-carboxamide,
N-(3',4'-dichloro-4- fluorobiphenyl-2-yl)-l-methyl-3-
difluoromethyl-l H-pyrazole-4-carboxamide, N-(3',4'-difluoro-
4-fluorobiphenyl-2-yl)-l-methyl-3-difluoromethy 1-1 H-
pyrazole-4-carboxamide, N-(3'-chloro-4'-fluoro-4-
fluorobipheny 1-2-yl)-l-methyl-S-difluoromethyl-l H-pyrazole-
4-carboxamide, N-(3',4'-dichloro-5-fluorobiphenyl-2-yl)-l-
methyl-3-trifluoromethyl-l H-pyrazole-4- carboxamide, N-
(3',4'difluoro-5-fluorobipheny 1-2-yl)-1-methy1-3-
trifluoromethy1-1 H- pyrazole-4-carboxamide, N-(3',4'-
dichloro-5-fluorobiphenyl-2-yl)-l- methyl-S-difluoromethyl-1
H-pyrazolecarboxamide, N-(3',4'-difluoro-5- fluorobiphenyl-2-
yl)-l-methyl-3-difluoromethyl-l H-pyrazole-4-carboxamide, N-
(3',4'-dichloro-5-fluorobiphenyl-2-yl)-1,3-dimethyl-1 H-
pyrazole-4-carboxamide, N-(3'-chloro-4'-fluoro-5-
fluorobiphenyl-2-yl)-l-methyl-3-difluoromethyl-l H-pyrazole-4-
carboxamide, N-( 4'-fluoro-4-fluorobiphenyl-2-yl)-l-methyl-3-
trifluoromethyl-l H-pyrazole-4-carboxamide, N-( 4'-fluoro- 5-
fluorobiphenyl-2-yl)-1-methyl-3-trifluoromethyl-1H-pyrazole-
4-carboxamide,N-( 4'-chloro-5-fluorobiphenyl-2-yl)-1-methyl-
3-trifluoromethyl-l H- pyrazole-4-carboxamide, N-(4'-methyl-
5-fluorobiphenyl-2-yl)-l-methyl-3-trifluoromethyl-l H-
pyrazole-4-carboxamide, N-( 4'fluoro-5- fluorobiphenyl-2-yl)-
1,3-dimethyl-l H-pyrazole-4-carboxamide, N-(4'- chloro-5-
fluorobiphenyl-2-yl)-1,3-dimethyl-l H-pyrazole-4-carboxamide,
N-( 4'-methyl-5-fluorobiphenyl-2-yl)-1,3-dimethyl-l H-
pyrazole-4-carboxamide, N-( 4'-fluoro-6-fluorobiphenyl-2-yl)-l-
methyl-3-trifluoromethyl-l H-pyrazole-4-carboxamide, N-(
4'chloro-6-fluorobiphenyl-2-yl)-l-methyl-3- trifluoromethyl-1
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Application 14/502,251

7
H-pyrazole-4-carboxamide, N[2-(1, 1,2,3,3,3-
hexafluoropropoxy)-phenyl]-3-difluoromethyl-l-methyl-l H-
pyrazole-4-carboxamide, N-[ 4'-(trifluoromethylthio )-biphenyl-
2-yl]-3-difluoromethyl-l-methyl-l H-pyrazole-4-carboxamide
and N44'-(trifluoromethylthio )-biphenyl-2-yl]-l-methyl-3-
trifluoromethyl-l-methyl-1H-pyrazole-4-carboxamide; or
B4) heterocyclic compounds selected from the group
consisting of fluazinam, pyrifenox, bupirimate, cyprodinil,
fenarimol, ferimzone, mepanipyrim, nuarimol, pyrimethanil,
triforine, fenpiclonil, fludioxonil, aldimorph, dodemorph,
fenpropimorph, tridemorph, fenpropidin, iprodione,
procymidone, vinclozolin, famoxadone, fenamidone,
octhilinone, probenazole, 5-chloro-7-( 4-methyl-piperidin-1-yl)-
6-(2,4,6-trifluoropheny I )-4-[ 1,2,4 ]triazolo[1,5-a]pyrimidine,
anilazine, diclomezine, pyroquilon, proquinazid, tricyclazole, 2-
butoxy-6-iodo-3-propylchromen-4-one, acibenzolar-S-methyl,
captafol, captan, dazomet, folpet, fenoxanil, quinoxyfen, N,N-
dimethyl-3-(3-bromo-6-fluoro-2-methylindole-l-sulfonyl)-
[l,2,4]triazolel-sulfonamide, 5-ethyl-6-octy 1-4-[ 1,2,4
]triazolo[l,5-a]pyrimidin-2, 7-diamine, 2,3,5,6-tetrachloro-4-
methanesulfonyl-pyridine,3,4,5-trichloro-pyridine-2,6-di-
carbonitrile, N-( 1-( 5-bromo-3-chloro-pyridin-2-yl)-ethyl)-2,4-
dichloro-nicotinamide, N-((5-bromo-3-chloropyridin-2-yl)-
methyl)-2,4-dichloro-nicotinamide, diflumetorim, nitrapyrin,
dodemorphacetate, fluoroimid, blasticidin-S, chinomethionat,
debacarb, difenzoquat, difenzoquat-methylsulphat, oxolinic
acid and piperalin; or
B5) carbamates selected from the group consisting of
mancozeb, maneb, metam, methasulphocarb, metiram, ferbam,
propineb, thiram, zineb, ziram, diethofencarb, iprovalicarb,
benthiavalicarb, propamocarb, propamocarb hydrochlorid, 4-
fluorophenyl N-(1-(1-(4-cyanophenyl)-ethanesulfonyl)but-2-
yl)carbamate, methyl 3-(4-chloro-phenyl)-3-(2-
isopropoxycarbony lamino-3-methy1-butyrylamina)propanoate;
or
B6) other fungicides selected from the group consisting
of guanidine, dodine, dodine free base, iminoctadine, guazatine,
kasugamycin, streptomycin, polyoxin, validamycin A, the
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8
nitrophenyl derivatives, dinocap, dinobuton, sulfur-containing
heterocyclyl compounds, isoprothiolane, fentin salts,
edifenphos, iprobenfos, fosetyl, fosetyl-aluminum, phosphorous
acid and its salts, pyrazophos, tolclofos-methyl, dichlofluanid,
flusulfamide, hexachlorobenzene, phthalide, pencycuron,
quintozene, thiophanate-methy1, tolylfluanid, cyflufenamid,
cymoxanil, dimethirimol, ethirimol, furalaxyl, metrafenone and
spiroxamine, guazatineacetate, iminoc-tadine-triacetate,
iminoctadine-tris( albesilate ), kasugamycin hydrochloride
hydrate, dichlorophen, pentachlorophenol and its salts, N-(4-
chloro-2-nitro-phenyl)-N-ethyl-4-methyl-benzenesulfonamide,
dicloran, nitrothal-isopropyl, tecnazen, biphenyl, bronopol,
diphenylamine, mildiomycin, oxincopper, prohexadione
calcium, N-( cyclopropylmethoxyimino-( 6-difluoromethoxy-
2,3-difluoro-phenyl)- methy1)-2-phenylacetamide, N'-( 4-( 4-
chloro-3-trifluoromethyl-phenoxy)-2,5-dimethyl-pheny I )-N-
ethyl-N-methylformamidine, N'-( 4-( 4-fluoro-3-
trifluoromethyl-phenoxy )-2,5-dimethy 1-pheny I )-N-ethyl-N-
methyl formamidine, N'-(2-methyl-5-trifluormethy 1-4-(3-
trimethylsilanyl-propoxy)phenyl )-N-ethyl-N-
methylformamidine and N'-(5-difluormethyl-2-methyl-4-(3-
trimethylsilanyl-propoxy)-phenyl)-N-ethyl-N-methyl
formamidine; or
combinations of any two or more of B1 through B6
thereof;
wherein the volume of the foam generated by the
formulation is reduced by 25% after about 45 minutes or
greater.
(Appeal Br. 28–33.)

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9
The following grounds of rejection by the Examiner are before us on
review:
Claims 79 and 80 under 35 U.S.C. § 112, first paragraph as failing to
comply with the written description requirement.3
Claims 1, 43–52, 76–78, 81, and 83 under 35 U.S.C. § 103 as
unpatentable over Burke4 and Burke II.5
Claims 1, 41, 43, 46–53, 76–78, 81, and 83 under 35 U.S.C. § 103 as
unpatentable over Burke, Burke II, and Barnett.6
Claims 1, 41, 45, 46, 48–50, 52, 76–84, and 86 under 35 U.S.C. § 103
as unpatentable over Ping7 and Burke.
Claims 1, 41, 45, 46, 48–50, 52, 76–84, and 86–88 under 35 U.S.C.
§ 103 as unpatentable over Ping, Burke, and Dexter.8

3 In the Final Action, the Examiner’s rejection under 35 U.S.C. § 112, first
paragraph included claims 86, 89, 90, and 91. (Final Action 2.) However,
after the Final Rejection, applicant amended claims 86, 89, 90, and 91,
which the Examiner entered for purposes of the Appeal and in light of those
amendment only maintained the specific rejection as to claims 79 and 80.
(Advisory Action 1–2.) While the Examiner also indicated that the rejection
is maintained as to claims 89 and 90 (Advisory Action 2), we understand
that indication to be an inadvertent error in light of the entered after final
amendment to claims 89 and 90, and do not further consider these claims in
the 35 U.S.C. § 112, first paragraph rejection.
4 Burke et al., WO 2010/129345 A2, published Nov. 11, 2010.
5 Burke et al., US 2012/0149570 A1, published June 14, 2012. (“Burke II”)
6 Barnett, Jr., US 4,975,425, issued Dec. 4, 1990. The Examiner relies on
Barnett only to address the limitations of claims 41 and 53. (Final Action
12–13.)
7 Ping, WO 01/89503 A1, published Nov. 29, 2001.
8 Dexter, US 6,214,771 B1, issued Apr. 10, 2001. The Examiner relies on
Dexter only to address the limitations of claims 87 and 88. (Final Action
16–17.)
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Claims 1, 41, 45, 46, 48–50, 52, 76–84, and 86–91 under 35 U.S.C.
§ 103 as unpatentable over Ping, Burke, Dexter, and Chen.9
DISCUSSION
112, First Paragraph
The Examiner finds that the Specification “does not teach that the
active ingredient is present in a total amount of 17.5% to 22.5% by weight.”
(Final Action 3.) The Examiner contends that Appellant’s calculation of the
weight percentage of bifenthrin in the Examples of the Specification to
establish written description support assumes that the “bifenthrin technical”
disclosed in the Examples is 100% pure bifenthrin, but that there is no
teaching in the Specification or other evidence provided by Appellant that
such is the case. (Ans. 4.) We disagree with the Examiner’s finding.
“In order to satisfy the written description requirement, the disclosure
as originally filed does not have to provide in haec verba support for the
claimed subject matter at issue.” Purdue Pharma L.P. v. Faulding, Inc., 230
F.3d 1320, 1323 (Fed. Cir. 2000). Nonetheless, the disclosure must convey
with reasonable clarity to those skilled in the art that the inventor was in
possession of the invention. See id.
Appellant has set forth calculations that one of ordinary skill in the art
would have used to determine the percentage of bifenthrin in the
formulations set forth in Examples 1–5. These calculations establish
“17.51 % (Example 3), 18.40% (Example 5), 20.88% (Example 4), 22.37%

9 Chen, US 2006/0166898 A1, published July 27, 2006. The Examiner
relies on Chen only to address the limitations of claims 89–91. (Final
Action 17–18.)
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11
(Example 1) and 22.46% (Example 2) [bifenthrin by weight], or a range of
about 17.5 to about 22.5% if the bifenthrin is 100% pure, or within the
disclosed range of 17 to 23% (see paragraph [0015]) if calculated based on
the 95.8% purity.” (Appeal Br. 9; see also Ans. 4–5.) The Examiner argues
that because there is “no teaching in the instant [S]pecification that the
‘Bifenthrin technical’ utilized is 100% pure” and because “there is a range of
purities available on the market” one of ordinary skill would not understand
that Appellant was in possession of the invention set forth in claim 79
delineating a range of the active ingredient being present “in a total amount
of 17.5% to 22.5% by weight.”
We determine that the preponderance of the evidence favors
Appellant. That is, the Examiner’s demand for an explicit statement in the
Specification that 100% pure bifenthrin was used in the examples is not
necessary. That is because “the written description requirement does not
demand either examples or an actual reduction to practice; a constructive
reduction to practice that in a definite way identifies the claimed invention
can satisfy the written description requirement.” Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010) (en banc). As Appellant
explains, it is mathematically clear that the examples set forth in Appellant’s
Specification, as would reasonably be understood by one of ordinary skill in
the art, teach the claimed range of active ingredient. (Reply Br. 4.) As
Appellant explains, that a commercial pesticide product is almost always
formulated with other materials or that the bifenthrin technical of Example 5
was 95.8% pure, does not detract from what one of ordinary skill in the art
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would reasonably understand from Examples 1–4 set forth in the
Specification. (Id.)
Thus, we reverse the Examiner’s rejection of claims 79 and 80 under
35 U.S.C. § 112, first paragraph as failing to comply with the written
description requirement.
II
A. Claim Construction
Before turning to the obviousness rejections, we begin with claim
construction. During prosecution, an application’s claims take their broadest
reasonable construction consistent with the specification, as one of ordinary
skill in the art would interpret them. In re Am. Acad. of Sci. Tech. Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004).
Claim 1 recites a “wherein” clause regarding the foamable liquid
agricultural formulation as follows: “wherein the volume of the foam
generated by the formulation is reduced by 25% after about 45 minutes or
greater.” We understand this limitation to be related to the foam’s “static
stability” described in the Specification at paragraph 59. In particular, the
Specification states:
“25% Drain Time,” or DT25, is a measure of a foam’s static
stability and is the time required for 25% of a foam’s volume to
disintegrate.
(Spec. ¶ 25.) The wherein clause of claim 1 requires that the composition,
once foamed, will have the property of being reduced by 25% any time after
about 45 minutes. As such, if a composition is reduced by only 10% any
time after about 45 minutes after initial foaming, the composition would not
be within the scope of the claim. However, if that same composition is
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reduced by 25% at an hour post initial foaming or even three days post
initial foaming, the composition would be within the scope of the claim.
Moreover, if a composition is reduced by 25% at, for example, one hour post
initial foaming, and then continues to lose foam volume thereafter, it would
meet the wherein clause limitation.
We note that the Specification discusses stability as a foam “flows
through [a] conduit from the foam generation chamber to the nozzle.”
(Spec. ¶ 22.) However, the wherein clause of claim 1 does not require any
particular environment under which the formulation, once foamed, must
maintain its foamed state at 75% of initial volume or greater until about 45
minutes or greater. Thus, for example, if a foam were to maintain its foamed
state at 75% of initial volume or greater until about 45 minutes or greater
even if the foam did not pass through a conduit in a foamed state, such a
foam would still be considered to meet the “wherein” limitation of claim 1.

B. Obviousness: Burke and Burke II
The Examiner finds that Burke teaches a ready-to-use foamable
pesticide composition that includes a diluent—such as water—, a particulate
pesticide, a thickening agent—such as xanthan gum—, and a surfactant
system that includes the surfactant sodium lauryl sulfate (SLS). (Final
Action 7.) The Examiner notes that Appellant’s claim 52 indicates that
xanthan gum is a foam stabilizer and that SLS is a foaming agent. (Id.) The
Examiner finds that Burke teaches the thickener/foam stabilizing agent can
be present from about 0.05% to about 1% by weight of the composition and
that the diluent can comprise at least 50% by weight of the composition.
(Id.)
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The Examiner recognizes that Burke does not disclose use of the
foaming agent within the claimed range. (Id. at 8.) However, the Examiner
determines that providing a foaming agent within this range would have
been obvious to one of ordinary skill in the art given the teachings of Burke
II. (Id. at 8–9.) In particular, the Examiner finds that Burke II teaches a
ready-to-use foamable composition that includes from 0.5 to about 15%
surfactant. (Id. at 8.) The Examiner finds that “Burke II teaches the rate at
which the foam breaks may generally be controlled by selecting the amount
of surfactant included in the composition with higher amounts of surfactant
corresponding to lower foam breaking rates (see [0169]).” (Id. at 8.) The
Examiner also finds that Burke II teaches the length of time the composition
foams may be increased by using thickening agents, among other things.
(Ans. 7.) According to the Examiner, one of ordinary skill in the art would
have been motivated to incorporate an amount of surfactant within the range
recited by Burke II in order to control the rate at which the foam breaks.
(Final Action 8–9.) The Examiner explains that one of ordinary skill in the
art would have “reasonably expect[ed] a formulation with about 50% by
weight of diluent (water) as taught by Burke . . . to have the same properties
as one with about 45% by weight as instantly claimed.” (Id. at 9.) Finally,
with respect to the “wherein” clause, the Examiner finds that a person of
ordinary skill in the art would expect the foamable composition of Burke as
modified by Burke II to have this claimed property given that the range of
surfactant and thickener would be within the claimed range. (Ans. 7.)
We agree with the Examiner that Burke and Burke II render the
formulation recited in claim 1 obvious. Burke teaches that it is desirable for
a foaming pesticidal composition to remain in the foam phase for at least
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about 30 minutes after application to increase the distribution and
bioavailability of the toxic pesticide within the target application site.
(Burke ¶ 35.) Burke explains that “[t]he longer the foam remains intact the
less moisture that is available to run off or flow out of the treatment area and
carry toxic compounds into surrounding areas that may not be protected or
allow for unintentional contact by humans or animals.” (Id.) After so
stating, Burke further explains that “[i]n various other embodiments, the
composition is capable of remaining in a foam phase for at least about 1
hour after application” or even longer. (Id. ¶ 36, see also id. ¶ 69.)
Burke notes that “[t]he rate at which the foam breaks may generally
be controlled by selecting the amount of surfactant included in the
composition with higher amounts of surfactant corresponding to lower foam
breaking rates.” (Id. ¶ 38.) Burke also explains that the length of time the
composition foams may be increased “by using thickening agents such as,
for example, xanthan gum.” (Id. ¶ 38.)
Burke describes using SLS in the surfactant systems to “cause the
composition to be in a foam phase after applied.” (Id. ¶ 42.) Burke explains
that a plurality of surfactants may be used and that at least 0.05% surfactant
system is used. (Id. ¶¶ 42–43.)
Burke II, like Burke, is directed to ready-to-use foamable pesticide
compositions. (Burke II ¶ 1.) And while we acknowledge that Burke II
desires to create ready-to-use foam pesticide compositions whose maximum
time for remaining in a foam phase is less than 10 minutes, Burke II like
Burke, provides some general statements about the use of surfactants and
thickeners in ready-to-use foam compositions. Like Burke, Burke II teaches
that the rate at which a foam breaks can be controlled by the amount of
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surfactant used—with higher amounts corresponding to lower breaking
rates—, and using thickening agents like xanthan gum. (Id. ¶ 169.) Burke
II, like Burke, indicates that “the amount of surfactant in the pesticide
composition may be selected[] to cause the composition to remain in the
foam phase for a minimum target time or, as in another embodiment, a
maximum target time.” (Burke II ¶ 196, Burke ¶ 69.)
Burke II, like Burke, describes a number of pesticides that may be
used in their formulations; indeed, the disclosures substantially overlap in
this regard. (Burke II ¶¶ 18–162, Burke ¶¶20–29.) Burke II discloses that
surfactants for use in a ready-to-use foamable pesticide composition may
include at least about 0.5% by weight of the composition and up to about
15% by weight. (Id. ¶ 176.) Burke II also describes using water as a diluent
in its ready-to-use foamable pesticide compositions. (Id. ¶ 166.) Burke II
indicates that the water can be present in as little as about 30%. (Id.)
In short, the disclosures of Burke and Burke II make it clear that the
types of surfactant (anionic and non-ionic both being usable in a surfactant
system to create a ready-to-use foamable pesticide formulation), and the
amount thereof are result effective with respect to the length of time one
desires to maintain a pesticide in a foamed formulation and provide a range
of use of such surfactants of from 0.05% (Burke ¶ 42) up to 30% (Burke II ¶
176). Burke II and Burke also indicate that the amount of water used as a
diluent in a non-concentrate ready-to-use foamable composition may be
varied from as low as 30% to as high as 90%. (Burke II ¶ 166, Burke ¶ 30.)
“[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.” E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d
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996, 1006 (Fed. Cir. 2018) (quoting In re Aller, 220 F.2d 454, 456 (CCPA
1955)). The motivation to optimize comes from the natural desire of those
skilled in the art to experiment with, and improve upon, known conditions
taught in the prior art. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003);
see also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person
of ordinary skill is also a person of ordinary creativity, not an automaton.”).
Thus, normally, it is to be expected that a change in concentration is an
unpatentable modification where ranges of a claim overlap. See e.g., Aller,
220 F.2d at 456; Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 737–
38 (Fed. Cir. 2013). A “range” in the prior art can be shown by reference to
multiple prior art patents. See, e.g., Iron Grip Barbell Co. v. USA Sports,
Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004). We, therefore, agree with the
Examiner that modifying the composition of Burke to have a foam
stabilizer/surfactant within the claimed range (1–15% by weight) would
have been prima facie obvious to one of ordinary skill in the art as a matter
of optimization in light of the general teachings of Burke and Burke II
regarding the effect of the amount of surfactants in foamable pesticide
compositions and the general teaching of amounts of surfactants that may be
used in such formulations.
We further find that about 50% of water as taught by Burke for the
diluent is close enough to be considered “about 45% by weight” water as
claimed. With respect to the amount of water required, Appellant argues
that according to the non-precedential decision in In re Patel, 566 Fed App’x
1005 (Fed. Cir. 2014), the proximity of about 50% to the claimed about 45%
alone is insufficient to establish obviousness. (Appeal Br. 15.) We disagree.
In In re Patel, the Court explained “a rejection based on ranges approaching
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each other might well be appropriate where there is a teaching in the prior
art that the end points of the prior art range are approximate, or can be
flexibly applied.” 566 Fed. App’x at 1010. We have just such a case here.
Burke teaches that the diluent water may be as low as “about 50%” and the
claimed invention requires water “up to about 45%.” Moreover, Appellant’s
Specification attributes no criticality to the amount of water, merely
indicating in the examples that water is mixed together with the active,
surfactant system, thickener, and preservative in making the foamable
formulations. (See, e.g., Spec. ¶¶ 61, 63, 69.)
Moreover, to the extent it may be deemed that about 50% disclosed in
Burke is not the same as the claimed about 45%, we determine that
modifying the composition to have water within the claimed amount of up to
about 45% by weight would have been obvious to one of ordinary skill in
the art as a matter of optimization in light of Burke II teaching the use of
water as a diluent for a ready to use foamable pesticide composition
including a surfactant system in amounts of from about 30% to 90% by
weight.
Appellant’s argument that Burke II teaches away from Burke because
Burke II discusses the use of non-ionic surfactants in a range of 0.5 to 15%,
whereas Burke discloses the use of anionic surfactants in a range of 0.05 to
0.45% is not persuasive. (Appeal Br. 10, 14; Reply Br. 7.) We disagree that
Burke II teaches only that non-ionic surfactants may be used in a range of
from 0.5 to 15%. Burke II paragraph 176 is not so limited. Rather it
indicates generally that “surfactants” in foamable pesticide compositions in
which it is desired to control the minimum or maximum time for the
composition to remain foamed may be used from 0.5% to about 15%. We
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agree with the Examiner that such a teaching would have suggested to one of
ordinary skill to optimize the Burke formulations given that Burke and
Burke II describe the use of the same active pesticide agents in a foamable
ready-to-use composition and given that both references indicate that
increasing the amount of surfactant is known to lower the foam breaking
rate, i.e., increase the amount of time that the foam remains foamed.
We also disagree with Appellant’s argument that because Burke II is
directed to fast-breaking foam compositions, the foam disintegration time
limitation is not rendered obvious by the combined teachings of the
references (Appeal Br. 11; Reply Br. 7). As discussed above, both Burke
and Burke II teach that the amount of surfactant can be adjusted to reduce
the foam breaking time and thus maintain a foam for a particular minimum
amount of time, and that the thickener, xanthan gum, also provides help in
that regard. The mere fact that Burke II teaches that it was able to achieve a
fast-breaking foam with a composition that includes a particular amount of
nonionic surfactant, e.g., polyethoxylated castor oil 5.6% (see Burke II,
Example 1, Table 1) does not detract from the fact that both Burke and
Burke II clearly teach that adjusting the amounts of surfactant, no matter
whether it be anionic or non-ionic, upward and including a thickener are
ways to cause the composition to remain in a foam phase for a minimum
target time. (Burke II ¶¶ 196, 169; Burke ¶¶ 69, 38).
Appellant’s argument that “[a]ny alleged modification of foam
breakage in Burke II is in the context of using a non-ionic surfactant, as no
other types of surfactants, such as anionic surfactants, have been used in
Burke II” (Appeal Br. 16), is unavailing. “It is well settled that a prior art
reference is relevant for all that it teaches to those of ordinary skill in the
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art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992). That Burke II
identifies certain specific non-ionic surfactants for use in the claimed fast
breaking foam compositions does not negate Burke II’s general teaching,
also stated in Burke, that the rate at which the foam breaks can be controlled
by the amount of surfactant used—with higher amounts corresponding to
lower breaking rates—, and that agents like xanthan gum can be used as
thickeners. (Burke II ¶ 169; Burke ¶¶ 31, 38.)
As already discussed, Burke together with Burke II teach the
ingredients of the claimed composition within the ranges claimed such that it
would have been prima facie obvious to optimize those concentrations to
achieve a composition that maintained a foam for at least one hour, a
desirable function taught by Burke. As we noted above, the wherein clause
of claim 1 merely requires that the composition not lose 75% of its foam
volume until after 45 minutes. We conclude that optimizing the surfactant
and xanthan gum amounts within the claimed ranges disclosed by Burke and
Burke II to achieve a foam that lasted at least one hour as desired by Burke
(Burke ¶ 36) would have met the wherein clause limitation.
In light of the foregoing, we disagree with Appellant’s position that
“the claimed limitations are not disclosed by the combination of the cited
references” (Reply Br. 6).
Appellant’s argument that Burke would not function to provide a
foam without a propellant (Appeal Br. 17), is not persuasive as claim 1,
being a comprising claim, does not exclude the use of a propellant.
Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501 (Fed. Cir. 1997)
(“‘Comprising’ is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still
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form a construct within the scope of the claim.”) Moreover, Appellant’s
argument that “the propellant-containing composition of Burke would defeat
the designed use of Appellant’s presently claimed composition” (Appeal Br.
17), is unavailing as claim 1 does not exclude propellants and because claim
1 is directed to a composition and not a method of using the composition.
Finally, Appellant argues that Burke and Burke II do not disclose air
as the propellant and that the propellants disclosed by Burke and Burke II
“would have been harmful to the ozone layer” when “applied to an entire
farming field.” (Appeal Br. 17). This argument is not persuasive to
establish the non-obviousness of the composition because it is immaterial to
the rejection of claim 1 (Appeal Br. 17), which does not require air as “the
gas used to convert the liquid agricultural formulation to a foam.” Indeed,
that is a limitation of claim 53. And the Examiner did not rely on Burke and
Burke II alone to address that limitation, but added Barnett in concluding
that claim 53 was obvious over the prior art.
Thus, for the foregoing reasons, we affirm the Examiner’s rejection of
claim 1 as being obvious over Burke and Burke II.
Claims 43–52, 76–78, 81, and 83 have not been argued separately and
therefore fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
C. Obviousness: Burke, Burke II, and Barnett
Claim 41: water
Claim 41 requires that the water present in the formulation that
includes a pesticide or other agriculturally active ingredient, a foaming
agent, and foam stabilizer “is up to about 10%.” The Examiner contends
that this water amount would have been obvious in light of the additional
teachings of Barnett. (Final Action 12–13.) In particular, the Examiner
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finds that Barnett teaches an herbicide or pesticide foam composition that
includes a blend of nonionic and anionic surfactants and water as well as a
gas such as air. (Id.) The Examiner finds that Barnett teaches that while the
amount of water in the composition ranges from 75 to 90%, it can be
“substantially reduced in the composition will be further diluted before use.”
(Id. at 13). According to the Examiner one of ordinary skill in the art would
have been motivated to reduce the water in the composition of Burke as
modified by Burke II because “Barnett teaches that the amount of water in a
similar formulation can be successfully reduced.” (Id.)
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). We determine that the
Examiner has not established a prima facie case of obviousness regarding
claim 41. In particular, Barnett does not provide sufficient evidence to
establish a maximum water content of the formulation of about 10%.
Barnett indicates that water is normally from 70 to 95% of the concentrate of
alcohol, emulsifier or surfactant blend plus water when the concentrate plus
added pesticide will not be further diluted prior to use. (Barnett 3:1–11.)
Burke and Burke II describe ready-to-use foamable compositions. Thus,
these compositions are concentrates plus active agent in which no further
dilution will occur prior to use. As such, there would be no motivation from
Barnett to reduce the water content below 70%. Even if one were to
conclude that Barnett provided some basis to reduce the water content of the
composition of Burke as modified by Burke II, there is nothing to suggest
10% as the maximum amount of water to be used, only that substantial water
reduction can be made. Burke II indicates that water as a diluent in ready-
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to-use foamable pesticide compositions can be as low as 30%. We
determine that 30% would be a substantial reduction from Barnett’s 70%
lower limit. The Examiner does not provide a persuasive reason why one of
ordinary skill in the art would consider further reducing the water content
based on the teachings of Barnett.
Consequently, we do not affirm the Examiner’s rejection of claim 41
as being obvious from Burke, Burke II, and Barnett.
Claim 53: air
Claim 53 requires the gas used to convert the liquid agricultural
formulation to a foam be air. The Examiner concludes that it would have
been obvious to one of ordinary skill in the art to use air as the gas of Burke
and Burke II in light of the teachings of Barnett indicating that similar
compositions can successfully be foamed using air. (Final Action 13.)
We agree with the Examiner’s position. It is obvious to those skilled
in the art to substitute one known equivalent for another. See In re
Omeprazole Patent Litigation, 483 F.3d 1364, 1374 (Fed. Cir. 2007)
(“[T]his court finds no . . . error in [the] conclusion that it would have been
obvious to one skilled in the art to substitute one ARC [alkaline reactive
compound] for another.”). “Express suggestion to substitute one equivalent
for another need not be present to render such substitution obvious.” In re
Fout, 675 F.2d 297, 301 (CCPA 1982).
Appellant contends that Burke would not function to provide a foam
without a propellant in the formulation. (Appeal Br. 17–18.) It is true that
Burke teaches including a propellant to “pressurize the storage container and
which create[s] foaming action upon application of the composition.”
(Burke ¶ 48.) Barnett, however, teaches that air or similar gas can be used to
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foam a ready to use foamable composition. (See, e.g., Barnett abstract and
3:35–39 (any device capable of “incorporating air or a similar gas into the
foam forming mixture” can be used to apply the foam forming
composition).) Thus, we agree with the Examiner that Barnett teaches air as
an equivalent alternative to the propellants taught by Burke and Burke II for
foaming a foamable composition, and it would have been obvious to use air
for that purpose in Burke as modified by Burke II with a reasonable
expectation of success.
Thus, for the foregoing reasons, we affirm the Examiner’s rejection of
claim 53 as being obvious over Burke, Burke II, and Barnett.
D. Obviousness: Ping and Burke
The Examiner contends that Ping teaches a composition that contains
a pesticide and a surfactant component in an amount of from about 5% to
about 99.5%, and can also include a solvent in an amount of from about 5%
to about 99.5%. (Final Action 13–14.) The Examiner notes that Ping
teaches the solvent can be sodium laureth sulfate, which is a foaming agent,
and that the solvent can be glycerin, which is a foam stabilizing agent. (Id.
at 14.) The Examiner further finds that Ping teaches the composition can be
an oil in water emulsion. (Id.)
The Examiner recognizes that Ping does not teach water up to about
45% by weight of the pesticide bifenthrin. (Id.) However, the Examiner
contends these are changes to the composition of Ping that would have been
obvious in light of Burke. (Id.) Regarding the amount of water, the
Examiner explains that because Burke teaches a similar composition
containing water, one of ordinary skill in the art would be motivated with a
reasonable expectation of success to use about 45% water, i.e., the about
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50% of water disclosed to be used as a lower limit in Burke. (Id.)
Regarding inclusion of bifenthrin, the Examiner contends that inclusion of
this pesticide taught by Burke would have been obvious since it is prima
facie obvious to combine two composition each of which is taught by the
prior art to be useful for the same purpose in order to form a third
composition to be used for the very same purpose. (Id. at 15.)
We disagree with the Examiner’s findings and conclusion of
obviousness. In particular, while Ping provides broad disclosure of possible
ingredients to include in a pediculicidal and ovicidal composition, the
composition is for cleansing individual infested with parasites. (Ping
abstract.) Thus, we agree with Appellant (Appeal Br. 21–22) that one of
ordinary skill in the art would not have found it obvious to combine
bifenthrin in any composition disclosed in Ping.
In addition, while Ping teaches generally that the compositions can
optionally contain a thickening agent such as glycerin (Ping 7), Ping teaches
more specifically in the “Summary of formulations developed and
hypotheses involved” that in formulating thicker emulsions to increase the
viscosity of the overall product, surfactants were not used in combination
with mineral oil and thickening emulsifying agents (Ping 19). Furthermore,
Ping teaches in this same section that glycerin was used in clear gel
formulations and does not teach inclusion of surfactants to create a foamable
composition. (Ping 21–22.) Consequently, we disagree with the Examiner
that Ping teaches a foamable composition that includes both a foaming agent
as claimed and a foam stabilizer.
Consequently, we do not affirm the Examiner’s rejection of claims 1,
41, 45, 46, 48–50, 52, 76–84, and 86 as being obvious from Ping and Burke.
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The Examiner’s remaining rejection of the claims relying on Dexter
and Chen do not remedy the failings of Ping, and thus we do not affirm the
Examiner’s rejection of the claims relying on Ping, Burke, Dexter or Ping,
Burke, Dexter, and Chen.
SUMMARY
We reverse the rejection of claims 79 and 80 under 35 U.S.C. § 112,
first paragraph as failing to comply with the written description requirement.
We affirm the rejection of claims 1, 43–52, 76–78, 81, and 83 under
35 U.S.C. § 103 as unpatentable over Burke and Burke II.
We reverse the rejection of claim 41 under 35 U.S.C. § 103 as
unpatentable over Burke, Burke II and Barnett.
We affirm the rejection of claim 53 under 35 U.S.C. § 103 as
unpatentable over Burke, Burke II and Barnett.
We reverse the rejection of claims 1, 41, 45, 46, 48–50, 52, 76–84,
and 86 under 35 U.S.C. § 103 as unpatentable over Ping and Burke.
We reverse the rejection of claims 1, 41, 45, 46, 48–50, 52, 76–84,
and 86–88 under 35 U.S.C. § 103 as unpatentable over Ping, Burke, and
Dexter.
We reverse the rejection of claims 1, 41, 45, 46, 48–50, 52, 76–84,
and 86–91 under 35 U.S.C. § 103 as unpatentable over Ping, Burke, Dexter,
and Chen.
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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).

AFFIRMED-IN-PART