Ex Parte Holzl et al - Page 3

                Appeal No. 2006-2655                                                                             
                Application No. 10/750,810                                                                       

                       R1 is C1-C16alkyl, C2-C16alkenyl or C5-C8cycloalkyl, each                                 
                       unsubstituted or substituted by halogen, -CN, -NO2, -C=O, -C=S,                           
                       -NR2, -OR3, -SR4, -SO2R5, -COOR6 or by a 1,3,4-oxathiazol-2-one                           
                       radical;                                                                                  
                       R2 and R3 are each independently of the other hydrogen; C1-C5alkyl;                       
                       C6-C10aryl, or acyl;                                                                      
                       R4 is hydrogen; C1-C5alkyl; or C6-C10aryl;                                                
                       R5 is C1-C5alkyl; or C6-C10aryl; and                                                      
                       R6 is hydrogen; C1-C5alkyl; or C6-C10aryl,                                                
                       and an orally tolerable adjuvant.                                                         

                                      Obviousness under 35 U.S.C. § 103                                          
                       Claims 18 and 19 stand rejected under 35 U.S.C. § 103(a) as obvious                       
                over Muhlbauer1 in combination with Kaminski,2 Lang,3 or Blank.4                                 
                Answer 3.                                                                                        
                       Muhlbauer describes substituted oxathiazole-2-one compounds and                           
                their preparation.  Muhlbauer at 1, ll. 6-7.  The compounds can be used as                       
                fungicides (id. at 3, l. 11), the same activity5 described in the instant                        
                application for the formula (1) compounds recited in claims 18 and 19.  The                      
                Examiner indicates that Muhlbauer (at 3, ll. 7-14; Examples 1-3 and 9; and                       
                claims 13-16) teaches compounds which fall within the scope of claims 18                         
                                                                                                                
                1 Muhlbauer et al. (Muhlbauer), GB 1,079,348, issued April 20, 1966.  Also                       
                referred to in the Answer as “Muehlbauer.”                                                       
                2 Kaminski et al. (Kaminski), U.S. Pat. 4,115,588, issued Sep. 19, 1978.                         
                3 Lang et al. (Lang), U.S. Pat. 4,772,689, issued Sept. 20, 1988.                                
                4 Blank, U.S. Pat. 4,847,088, issued Jul. 11, 1989.                                              
                5 The specification characterizes the oxathiazolones of formula (1) as having                    
                “antimicrobial action” against bacteria, yeast and molds.  Specification 5.                      
                Yeast and mold are fungi.  The Random House Dictionary of the English                            
                Language 859, 1526 (1968). A compound having antimicrobial action                                
                against fungi can also be described as a “fungicide.”  Id. at 535.                               
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