Appeal No. 1997-1903
Application No. 08/229,118
While there is no dispute that Heywood discloses a broad
genus which encompasses appellants' bromoxynil n-octanoate and
bromoxynil n-heptanoate which exhibits herbicidal activity,
the examiner relies upon Esposito for disclosing a combination
of esters of bromoxynil within a narrower genus which includes
C -C esters. Like the presently claimed compounds and those
4 8
disclosed by Heywood, Esposito teaches that the mixture of
esters exhibits herbicidal activity. According to the
examiner, "[a]lthough Esposito suggests the combination of the
n-butyrate and
n-octanoate esters of bromoxynil as the preferred and most
effective embodiment, the initial teaching embodies various
combination [sic, combinations] of C4-C8 esters of bromoxynil"
(page 4 of Answer, first paragraph).
The fatal flaw in the examiner's reasoning is that
Esposito does not disclose C -C esters of bromoxynil. Rather,
4 8
in the section of Esposito relied upon by the examiner (column
2, lines 10-23), Esposito expressly discloses that "n is an
integer having a value of 2 or 6" (lines 22 and 23, emphasis
added), which translates into the singular mixture of the n-
butyrate and n-octanoate esters. Hence, the examiner errs in
-4-
Page: Previous 1 2 3 4 5 6 Next
Last modified: November 3, 2007