Appeal No. 96-2311
Application 08/139,057
sodium bicarbo-nate, (3) diflubenzuron, and (4) a surfactant
in appropriate amounts. That is, the examiner must establish
that it would have been obvious to add dihydroxybenzene to a
composition of Wellinga, modified per the teachings of Misato,
as discussed above. The examiner attempts to overcome this2
hurdle based on the Koch disclosure of o-dihydroxybenzene
among a large number of "possible fungicidal partners" mixed
with thioglycolic acid anilides having the formula (I). See
Koch, col. 11, line 20, naming o-dihydroxybenzene among a list
of "possible fungicidal partners" running from col. 9, line 56
through col. 14, line 6. This is where the examiner's case
breaks down. In our judgment, a person having ordinary skill
in the art would not have selected o-dihydroxybenzene from
Koch's lengthy list of "possible fung-icidal partners," and
added same to an aqueous pesticide formu-lation comprising (1)
sodium bicarbonate, (3) diflubenzuron, and
Dihydroxybenzene is a preferred water-soluble polyhydroxy compatibility2
enhancing ingredient (2) and constitutes elected subject matter in this case
(examiner's answer, page 3).
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