Appeal No. 2001-1251 Page 3
Application No. 08/369,865
less than clear as to the reason the examiner withdrew the rejection under 35
U.S.C. § 103, the only issues before this Panel are the rejections under 35
U.S.C. § 102.
The rejections under 35 U.S.C. § 102:
Hatton:
According to the examiner (Answer, page 4) Hatton discloses the
application of the claimed compound to grasslands. The examiner finds (id.) “the
arthropod involved is a locust.” In support of this rejection, the examiner relies
(id.) on claim 1, column 17, line 5, and column 18, line 18 of Hatton.
Buntain:
According to the examiner (Answer, page 5) Buntain teaches the
application of appellants’ claimed compound to the same locus in order to treat
insects. In support of this rejection the examiner relies on page 2, line 47; page
3, line 46; page 5, lines 26 and 27 and 36-51; page 6, lines 1-9; and page 8,
lines 6-8.
Appellants’ response to the rejections under 35 U.S.C. § 102:
Appellants’ response to the rejections over Hatton and Buntain is
essentially the same. In essence, appellants argue that the examiner, using
appellants’ disclosure as a guide, selected from extensive lists of compounds,
loci, and pest targets in order to arrive at the invention now claimed. According
to appellants (Brief, page 5), this “[i]ndiscriminate picking and choosing does not
qualify as an anticipation.”
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