Appeal No. 1996-0212
Application No. 08/261,759
See the specification at page 29. In any event, there is no
compelling objective evidence of record indicating that
Borisov’s fertilizer cannot be utilized in a foliar
application as required by the preambular language of
appellants’ composition claims. Compare In re Pearson, 494
F.2d 1399, 1403, 181 USPQ 641, 644 (CCPA 1974). Based on the
above, we sustain the examiner’s rejection of appealed claim
31. Since appealed dependent claims 32-35 do not specify any
compositional requirements that distinguish the claimed
subject matter from that of Borisov, we also sustain the
examiner’s rejection of these claims.
Appealed composition claim 6 defines a liquid aqueous
foliar fertilizer, inter alia, as comprising at least one
liquid phosphate ester and at least one hygroscopic agent in
certain functional amounts. Appellants explain in their
specification at pages 6 and 7 that the hygroscopic agent may
be provided “as an excess amount” of the polyhydroxy alcohol
used in forming the “alcohol” phosphate ester. In this
regard, we note that Borisov contemplates the formation in
some embodiments of a triester reaction product. See the
translation of Borisov at page 3 first full paragraph. One of
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