Appeal No. 94-2612
Application 07/759,478
The examiner asserts that Röechling discloses in Examples
13 and 26 the specific combination of herbicide and surfactant
as per appellants’ elected invention (answer, page 3). 4
Röechling does require another ingredient, i.e., a
phosphorylated emulsifier listed as emulsifier type I (column
1, lines 30-49, column 2, lines 34-40, and claim 1).
Appellants argue that “consisting essentially of” in the
claim excludes the third “active ingredient” of Röechling
while the examiner contends that the additional ingredient
does not distinguish Röechling from the claimed subject matter
(see the brief, pages 3 and 4, and the answer, pages 3-5).
It is well settled that the recital of “essentially”
along with “consisting of” renders the claim open only for the
inclusion of unspecified ingredients which do not materially
affect the basic and novel characteristics of the
combinations disclosed by European Patent Application No. 90,112,739.9 and German Patent
Application P 3,938,564.7 (see the specification, page 10). There is no argument or
evidence that the exception clause of claims 6 and 17 excludes the disclosed
combinations of Röechling.
4 It is noted that appellants’ particularly preferred surfactant is ®Genapol LRO
(specification, page 9, lines 20-28), which is the same surfactant used in Examples 13
and 26 of Röechling (see column 2, lines 34-40, column 6, line 24, column 9, line 6, and
column 10, line 1).
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