Appeal No. 2001-0933 Page 4
Application No. 09/205,530
Claims 1-46 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Hazen.
DISCUSSION
The issue for our review is whether the claimed invention is properly
rejectable under § 103 as being unpatentable over Hazen. After careful review of the
record, we find the examiner’s position raised in this appeal is not amenable to a
meaningful review. Under the present circumstances, the position put forward by the
examiner in support of the rejections is insufficient for the reasons infra. Since the
Board serves as a board of review, not a de novo examination tribunal (35 U.S.C. §
6(b)), it is necessary that we understand examiner’s position and that that position
be thoroughly presented before we make that review. Accordingly, we vacate the
rejection and remand the application to the examiner so that the issue of
obviousness can be reconsidered in light of our discussion and, if reinstituted,
supported with proper grounds.
The claimed invention is directed to a composition that can be used as an
agricultural adjuvant in, for example, herbicide formulations. The claimed
composition, as represented by claim 1, comprises
1. about 50-95% by weight of a lower alkanol ester of a fatty acid; and,
2. about 5-50% by weight of an emulsifier comprising:
a. a nonionic surfactant; and,
b. an anionic surfactant.
It is axiomatic that:
Under § 103, the scope and content of the prior art are to be determined;
differences between the prior art and the claims at issue are to be ascertained;
and the level of ordinary skill in the pertinent art resolved. Against this
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