Appeal No. 1996-0212
Application No. 08/261,759
requires substantive arguments as to why the claims are
separately patentable. See CFR § 1.192(c)(7) 1995.
Accordingly, we have considered composition claims 6-20 as a
single group and have selected appealed claim 6 for the basis
of deciding this appeal from this grouping of claims. Since
we sustain the rejection of appealed claim 6, we necessarily
also sustain the rejection of claims 7-20.
Appealed method of use claims 1-5 and 36-40 and appealed
fertilizer/plant combination claims 21-29 are another matter.
As emphasized by appellants in their brief, Borisov discloses
phosphate ester fertilizers only for use by application to
soil, not for foliar application as claimed, and Polle has
offered his opinion in the declaration executed on May 24,
1993 that “workers in this field do not conclude that
fertilizer applied to soil can be used for foliar
applications” because, inter alia, “the leaves and roots of
plants differ in their physiology”. See the declaration at
pages 10 and 11. Moreover, the examiner has referred to no
disclusure in Borisov or the relied upon Nooden patent that
factually supports his broad allegation that “it would have
been obvious for one of ordinary skill in the art to take
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