Appeal No. 1997-3892
Application 08/421,379
In re Nomiya, 509 F.2d 566, 574, 184 USPQ 607, 613 (CCPA 1975). Therefore, we are of the
view that one of ordinary skill in this art would have considered other alternatives to address the
problem of inhibiting biological fouling of irrigation systems.
We have carefully considered the teachings of Alexander and find ourselves in agreement with
the examiner (answer, pages 5-6) that one of ordinary skill would have found in this reference the
teaching that a zinc salt, such as zinc chloride and zinc sulfate, can be used in “an effective amount” to
disinfect sludge from a bio-oxidation facility by destroying bacteria therein (e.g., col. 1, lines 15-17, 29-
33 and 62-64, and col. 2, lines 1-5), wherein the effective amount can be determined by one of
ordinary skill in the art for the sludge stream to be treated (e.g., col. 2, lines 6-8 and 25-31).3 Indeed,
it would have been apparent to this person that the destruction of bacteria in the sludge is an objective
for the application of the zinc salt separate and apart from the further objective of facilitating flocculation
of the sludge by adding a base to precipitate zinc hydroxide, and particularly since the reference does
not teach that this salt must be applied in the presence of a base in order to meet the first objective (e.g.,
col. 1, lines 37-43 and 44-51, and col. 2, lines 9-24). We find that one of ordinary skill in this art
would have reasonably inferred from Alexander that the amount of zinc salt to use for the sole objective
of destroying bacteria can be determined by routine experimentation, and indeed, would have
recognized that the zinc salt can be mixed with water prior to mixing with the sludge and the biomass
contained therein (e.g., col. 1, lines 62-64, and col. 2, lines 6-8).
Based on this evidence, we conclude that, prima facie, one of ordinary skill in this art would
have found in the known problem of biological fouling of irrigation systems and the teachings of
Alexander, that a zinc salt, such as zinc chloride and zinc sulfate, would destroy bacteria in an aqueous
medium, the reasonable suggestion that such zinc salts would be expected to successfully inhibit
biological fouling of irrigation systems caused by bacteria when an effective amount thereof based on the
particular application is mixed with the irrigation water. See In re Dow Chemical Co., 837 F.2d 469,
3 It is well settled that in considering the effect of a reference, we must consider the specific teachings
thereof and the inferences one of ordinary skill in this art would reasonably be expected to draw
therefrom, see In re Fritch, 972 F.2d 1260, 1264-65, 23 USPQ2d 1780, 1782-83 (Fed. Cir. 1992);
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