Appeal No. 2000-1872
Application No. 09/087,746
application. Bok teaches one having ordinary skill in the art would be
motivated to perform this modification in order to have more microbes, while
Wilson teaches how to kill algae. Motivation would be evident to aquatic
practitioners: one application removes both organic and algae pollutions in
compatible means.
Even if we assume for the purpose of argument that each of the references
describes that which the examiner states, it remains that the examiner has provided no
substantive evidence or reason to be found in the prior art which would reasonably suggest
to one of ordinary skill in this art that each of these elements should have been brought
together into a single composition as presently claimed. While Levy may well describe
remediation of organic pollutants using microorganisms, the colorant described is not a
colorant, but a UV protectant and there is nothing which would suggest that this UV
protectant is present in an amount which would prevent or minimize the photosynthesis of
an algae or weed. As appellants have argued, such substances would be expected to be
colorless or white and would not be expected to block or absorb visible light in a manner to
interfere with a plant's photosynthesis. (Brief, page 13).
Similarly, Wilson would reasonably appear to describe the use of colorants in water
systems to kill algae, but provides no description which would reasonably be read to
suggest the use of this system in conjunction with a microbial system of the type described
by Levy for a remediation process.
To the extent that the examiner urges that one of ordinary skill in this art would be
motivated to combine these two methods so as to permit "one application [which] both
organic and algae pollution, in compatible means," (Answer, page 6) it is sufficient to note
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