Appeal No. 2001-0933 Page 5
Application No. 09/205,530
background, the obviousness or nonobviousness of the subject matter is
determined.
Graham v. John Deere, 383 U.S 1, 6, 148 USPQ 459, 467 (US 1966).
Regarding the scope and content of Hazen, examiner (Examiner’s Answer,
p. 4) points out that Hazen is directed to adjuvant-containing herbicide formulations
and discloses a formulation comprising an herbicide and
1. about 100 g/L of a lower alkanol ester of a fatty acid (col. 5, lines 7-15);
2. about 5-100 g/L of an emulsifier comprising:
a. 95-60% of a nonionic surfactant (col. 3, lines 37-38); and,
b. 5-40% of an anionic surfactant (col. 3, lines 40-41).
However, regarding the differences between Hazen and the claims,
examiner focuses solely on the lower alkanol ester of a fatty acid component and
appears to ignore the anionic and nonionic surfactants of the claimed composition.
Whether or not there is a difference between the surfactants taught in Hazen and
those claimed is not explained. For example, the claimed invention is limited to a
nonionic surfactant selected from the group consisting of:
€ an ethoxylated castor oil;
€ an ethoxylated-propoxylated castor oil;
€ an ethylene-propylene block copolymer;
€ an ethoxylated-propoxylated alkyl phenol;
€ an ethoxylated sorbitan fatty acid ester;
€ a sorbitan fatty acid ester; and,
€ combinations thereof.
Hazen discloses nonionic polyoxyalkylenes. Whether or not there is a difference
between the claimed nonionic surfactants and Hazen’s nonionic polyoxyalkylenes is
not explained. In establishing a prima facie case of obviousness, the initial burden
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