Appeal No. 94-2881
Application 07/790,729
fungicides and herbicides, the attempts to formulate such mixtures result in formulations which are
unstable or have reduced efficacy because the active ingredients are physico-chemically, chemically
or biologically incompatible with each other. Appellants have found a way of eliminating or reducing
this incompatibility by formulating a water-dispersible composition comprising the steps of forming
an emulsion of a first active component and a surfactant and combining the emulsion with a latex and
a second active component which is incompatible with the first active component.
Under 35 U.S.C. § 103, the initial burden of establishing a prima facie case of obviousness
rests on the examiner. In re Piasecki, 745 F.2d 1468, 1471-1472, 223 USPQ 785, 787-788 (Fed.
Cir. 1984); In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied,
389 U.S. 1057 (1967). This burden is satisfied by showing that the prior art would have suggested
the claimed invention. In re Lalu, 747 F.2d 703, 705, 223 USPQ 1257, 1258 (Fed. Cir. 1984). This
suggestion must be found in the prior art, not in applicant's disclosure. In re Dow Chemical Co., 837
F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988). After careful review of the prior art
references cited by the examiner, we find that neither Meyers nor Feinberg teach or suggest
appellants’solution to the problem of mixing two incompatible biologically active components into
a single composition.
Neither reference discloses or suggests mixing two incompatible active components, one
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