Appeal No. 1999-0647 Page 6
Application No. 08/683,411
appellant's invention, we find nothing in Hedges which would have suggested impregnating such mulch
material with an insecticide, such as a borate salt.
Therefore, we shall not sustain the examiner's rejection of independent claims 1 and 20, or
claim claims 4, 5 and 21-23 which depend therefrom.
REMAND TO THE EXAMINER
We remand this application to the examiner to consider whether claims 1, 4, 5 and 20-23 are
unpatentable over Palmere (U.S. Patent No. 5,104,664), either alone or in combination with other
prior art.
Palmere discloses methods and compositions for retarding and eradicating infestations of insects
and fungi in living trees, cut timber or lumber and other wood based products. It is an object of
Palmere's invention to provide solutions to the problems of wood infestation which are environmentally
safe, economical and adapted for efficient application under a wide variety of circumstances, including
application to living trees, lumber and other tree derived products, existing structures and dwellings as
well as within and around such structures and dwellings (column 3, lines 7-14). Palmere's invention is
specifically directed to treating such products with a composition comprising a borate salt, such as
disodium octaborate tetrahydrate and sodium salts of boric acid and boric oxide (column 4, lines 15-
17). The examiner should note especially Palmere's disclosure, in column 22, lines 15-16, that the
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