Appeal No. 1996-0212
Application No. 08/261,759
sufficient hygroscopic liquid to maintain the spray in a
liquid state. Appealed claim 21 defines a combination of
liquid aqueous fertilizer and plants wherein the fertilizer is
in a volume of lower than twenty gallons per acre of plants.
Initially, we discuss the question of whether “product-
by-process” claim 31 defines patentable subject matter when
compared to the prior art fertilizer described by Borisov. In
a manner and procedure similar to the process used by
appellants to form the claimed fertilizer, Borisov forms a
mixture of a phosphoric acid (orthophosphoric acid) and a
polyhydroxy alcohol (ethylene glycol) which is heated to 140EC
to produce an aqueous solution of “glycol orthophosphate”
which may be in the form of a mono-, di-, or triester. This
solution is neutralized with appropriate amounts of solutions
of potassium or ammonium hydroxide or with magnesium or
calcium oxide to produce mono or disubstituted salts of the
“glycol orthophosphate” ester. As noted above, appellants’
fertilizer is made by a similar process, however, a “reaction
promoter” such as calcium oxide is present when appellants’
phosporic acid/polyhydroxy alcohol reaction mixture is heated,
and appellants heat the mixture to somewhat higher
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