Appeal No. 2000-1872
Application No. 09/087,746
that presently claimed, it remains that the reference does not describe each element of the
claimed invention. Thus, we are persuaded that Diamond does not describe a
composition which corresponds to that which is required by the claims. We, therefore,
reverse the rejection of the appealed claims 1 - 16, 19, and 20 under 35 U.S.C. § 102.
The rejection under 35 U.S.C. § 103
The examiner has rejected claim 1 - 20 (Answer, pages 5-6) under 35 U.S.C. § 103
as being unpatentable over Levy, Bok, and Wilson. The examiner urges that Levy
describes microbial agents with growth accelerating agents useful in the control or
reduction of organic pollutants. The examiner, additionally, urges that colorants are
present in these compositions, since Levy describes the use of UV protectors which would
be expected to reduce sun light and thus photosynthesis of unwanted algae and/or weeds.
The examiner acknowledges that Levy does not teach all of the instant forms, ingredients
or concentrations as required by the claims. (Answer, page 5). However, the examiner
relies on Bok as providing microbes for pollution control in water and as disclosing the
specific nutrients and cell concentrations which Levy addresses in a general manner. The
examiner relies on Wilson as describing the use of dyes and colorants, of the type required
by the present claims, for algae and/or weed control, in a manner which makes use of
competitive absorbance of light which affects the photosynthetic process. (Id.).
The examiner concludes (Answer, page 6):
[i]t would have been obvious to a person of ordinary skill in the art at the time
the invention was made desiring to utilize a remediation composition, to use
one of Levy modified with specific components to provide acceptable
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