Appeal No. 1996-0212
Application No. 08/261,759
esterification of Borisov’s fertilizer is only 60 percent,
appellants report in their own specification that the degrees
of esterification achieved from their reaction “provides for
conversion of a majority or more, such as approximately 60% or
more of the phosphoric acid into alcohol phosphate esters.”
See the last full paragraph of the specification at page 28.
Accordingly, the claimed product-by-process fertilzer does not
differ from the prior art fertilizer in terms of the degree of
esterification. Indeed, no appealed claim expressly defines
appellants’ phosphate ester by reference to the degree of
esterification.
At page 19 of the Polle declaration executed May 24,
1993, Polle states that the “low proportion of hygroscopic
material and the high percentage of salts” in the Borisov
fertilizer would prevent the prior art composition from
performing as a foliar fertilizer. However, there is no
objective evidence of record regarding the quantity of
hygroscopic material and salts which are actually present in
Borisov’s fertilizer. Moreover, appellants themselves
contemplate the “desirable” use of monoester products which
would also necessarily contain a high percentage of salts.
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