Appeal No. 94-2881
Application 07/790,729
combined with a latex in the dispersed phase and the other in the continuous aqueous phase or second
dispersed phase as required by the claims on appeal. Moreover, the only active compounds disclosed
by Meyers and Feinberg appear to be appellants’ first active component. The examiner has not
pointed to any portion of either patent which would have suggested to one skilled in the art the
concept of mixing two or more incompatible agriculturally active components as set forth in the
claims on appeal. On this record, we must conclude that the examiner has not made out a prima
facie case of obviousness for rejecting the claims over Meyers or Feinberg alone.
The examiner has also rejected all of the appealed claims over Meyers or Feinberg in view of
the Dial Index Abstracts. In the answer, the examiner indicated that the Dial Index Abstracts
reference has a publication date of “1991.” We have not been able from the documentation of record
to ascertain how the examiner arrived at this date. In any event, this application is a continuation of
a parent application and has an effective filing date of April 5, 1990. See footnote
1. In view of the fact that the examiner has not established a publication date for the Dial Index
Abstracts reference prior to April 5, 1990, we find that the reference is not available as prior art.
Accordingly, this rejection will not be sustained for reasons set forth, supra, for Meyers or Feinberg
taken alone.
For the foregoing reasons, we find the examiner has not made out a prima facie case of
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