Appeal No. 2001-1160 Page 3
Application No. 08/479,977
effectiveness against termites (Coptotermes formosanus). The results (Table 2)
show that MGK-264 completely lost effectiveness after two months, and
permethrin caused only 30% mortality after three months. The combination of
MGK-264 and permethrin, however, caused 100% termite mortality even after
three months’ storage. Appellants concluded that the “composition is a termite-
controlling agent excellent in the persistence of efficacy, and particularly it is
extremely effective also in use for soil treatment.” Specification, page 8.
Discussion
The claims are directed to a method for controlling termites by applying a
combination of a pyrethroid (e.g., permethrin) and MGK-264 to termite-infested
soil or to wood. The examiner rejected the claims as obvious over Joyce and
Richardson:
The Joyce et al. reference teaches that the claimed combination of
permethrin and MGK-264 is old and known for [its] synergistic
insecticidal activity. The [Richardson] reference teaches that the
claim designated permethrin is an old insecticide effective against
termites. See page 4, line 13, wherein termites are disclosed; page
3, line 1, wherein, permethrin is the preferred insecticide; and page
2, line 2, wherein timber is treated. The prior art clearly teaches
that permethrin is effective as a termite insecticide. The prior art
also teaches that the combination of permethrin and MGK-264 is
old and known for its synergistic insecticidal properties. Therefore,
one skilled in the art would find ample motivation from the prior art
supra to use the claimed combination of compounds against the
target insects and locus of the instant application with a reasonable
expectation that said compounds would be effective to combat said
target insects.
Examiner’s Answer, page 4.
Appellants argue that the examiner has not made out a prima facie case
of obviousness and that, in any case, “any possible prima facie obviousness
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