Appeal No. 1998-2047
Application No. 08/400,559
provided by Gisi, who teaches that cyproconazole is especially effective against
fungi of the genus Sclerotium. See page 34 (“The highest control levels were
achieved against . . . all rusts and other Basidiomycetes like . . . Sclerotium.”).
Appellant has argued that the prior art would not have led a skilled artisan
to expect that treating allium seeds with cyproconazole would be an effective
treatment against S. cepivorum infestation. See pages 11-12 of the Appeal Brief.
Appellant’s basic position is that effectiveness of cyproconazole against S.
cepivorum, and the phytotoxic effect of cyproconazole on the treated plants,
could only be assessed “empirically, by experimentation, the results of which, in
the face of the cited documents, are unpredictable.” Appeal Brief, page 11.
This argument is unpersuasive. “Obviousness does not require absolute
predictability of success. . . . For obviousness under § 103, all that is required is
a reasonable expectation of success.” In re O’Farrell, 853 F.2d 894, 903-04,
7 USPQ2d 1673, 1681 (Fed. Cir. 1988). The prior art teachings (1) that S.
cepivorum could be treated effectively with a known antifungal compound and (2)
that cyproconazole was effective against a variety of fungi, and especially
effective against Sclerotium, would have provided a skilled artisan with a
reasonable expectation that cyproconazole would be effective against S.
cepivorum.
Appellant has also submitted declaratory evidence which is asserted to
show unexpected results. Specifically, Appellant submitted a declaration under
37 CFR § 1.132 by Ulrich Gisi. See Paper No. 27. In his declaration, Dr. Gisi
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