Appeal 2006-3332
Application 10/161,519
in the ground. We do not sustain the rejection of claims 15 and 22 as
unpatentable over Takenaka because of the lack of evidence cited therein
that the use of a device containing only bait, without toxicant or insecticide,
was known at the time of Appellant’s invention.
The Examiner’s additional reliance on Homma solely for its showing
of a cover on a bait station (Final Rejection 4) does not make up for the
deficiency of Takenaka discussed above, with regard to the “toxicant-free
monitoring device” limitation of claims 1 and 12. Thus, the rejection of
claims 8 and 19 as unpatentable over Takenaka in view of Homma also is
not sustained.
In rejecting claims 9-11 and 18, which depend, directly or indirectly,
from claim 1 or claim 12, as unpatentable over Takenaka in view of AAPA,
the Examiner (Final Rejection 4) relies on AAPA only as evidence that
hexaflumuron is a well known toxicant (Specification 19:2, 19:11-13). This,
of course, does not make up for the deficiency of Takenaka discussed above.
Accordingly, this rejection also is not sustained.
NEW GROUND OF REJECTION
Pursuant to our authority under 37 C.F.R. § 41.59(b), we make the
following new ground or rejection.
Claims 1, 2, 4-13, and 15-22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Takenaka in view of Homma, and Appellant’s admitted
prior art (Specification 2:19-26, 19:2, and 19:11-13).
Takenaka discloses a device for controlling termites, the device
comprising a hard plastic container 1 having perforations 2 and a hollow
interior 3 filled with a mixture of pulp, sawdust (a cellulose-containing
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