Appeal No. 2001-0933 Page 8
Application No. 09/205,530
basic formulation disclosed in Hazen’s examples and determined the amount of
ester, when used as a solvent, that would be needed to bring the basic formulation
to a liter of volume. Examiner then appears to have determined that the volume that
is associated with the amount of solvent ester in Hazen’s final 1 liter formulation
would correspond to a level of 50% within the claimed range. However, we agree
with appellant (Reply Brief) that the calculation assumes the same density for all the
components in Hazen’s composition and that, therefore, the resulting percentage of
ester is questionable at best.
. Also, we do not understand why examiner has focused on the 10% level
disclosed in Hazen. That defines the proportion of alkanol ester in a formulation that
includes the herbicide. In the claims, the 50 to 95% level for the alkanol ester
component is coupled with the 5 to 95% for the emulsifier component, absent any
herbicide. Accordingly, rather than focusing on percentages, the better approach
would be to compare actual weights for those two components for a given volume.
In that light, we discover that Hazen discloses a composition comprising about 100
g/L of a lower alkanol ester of a fatty acid (col. 10, line 5) and, for example, 100 g/L
of an emulsifier (col. 3, line 43); i.e., a 50:50 weight ratio for each liter of mixture.
Given that the claimed invention too covers a composition with a 50:50 weight ratio,
there would appear to be no difference between the claimed and Hazen’s amounts
of lower alkanol ester of a fatty acid in the adjuvant composition.
For these reasons, we consider examiner’s position in support of the
rejections to be unclear and in need of a thorough re-evaluation.
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