Appeal No. 1997-3684
Application No. 08/468,010
Appellant then filed a Supplemental Paper6, which resulted in a Remand7 of
the application, from the Board, to the examiner for consideration of the newly
submitted material. On November 12, 1998, the examiner sent a communication8
to appellant explaining that this Supplemental Paper was not timely filed and
therefore was therefore not considered by the examiner. Accordingly, we have not
considered this Supplemental Paper in our deliberations.
THE REJECTION UNDER 35 U.S.C. § 103:
Appellant recognizes (Brief, page 7) that “[i]t is beyond dispute that 1)
Schaub discloses the fungicide, cyproconazol, 2) Reinecke et al. disclose other
fungicides with quarternary ammonium salts; and 3) Iwasaki et al. disclose a non-
fungicidal boicide and a branched quarternary ammonium synergist.” However,
appellant argues (Brief, page 7) that “no legitimate legal nexus exists to combine
those teachings without hindsight.” In response, the examiner, relying on In re
Kerkhoven, 626 F.2d 846, 205 USPQ 1069 (CPA 1980), argues (Answer, pages 4-
5) that:
The difference between the claimed invention and the cited
references is that no single reference expressly discloses the
combination of cyproconazole and quaternary ammonium salts, as
claimed. However, both ingredients are known fungicides with activity
against Basidiomycetes, Ascomycetes and Deuteromycetes, and
their combination for fungicidal purpose for a substrate such as wood
would have been obvious since such substrate is susceptible to fungi
such as Basidiomycetes, Ascomycetes and Deuteromycetes.
6 Paper No. 14, received August 21, 1998.
7 Paper No. 15, mailed October 29, 1998.
8 Paper No. 16, re-mailed on May 26, 1999 (Paper No. 20).
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