Appeal No. 2002-2243 Page 3
Application No. 09/768,321
borate salt in a concentration sufficient to produce a mulch
ineffective in protecting the mulch from infestation by
termites and effective in killing termites in a colony remote
from the mulch.
23. A method of making a mulch for eradicating termites
without poisoning soil comprising spraying at least one of
tree bark and wood chips with an aqueous solution of a
borate salt in a concentration of about 0.5 weight percent to
produce a mulch ineffective in protecting the mulch from
infestation by termites and effective in killing termites in a
colony remote from the mulch.
The anticipation rejection
Turning first to the rejection of claim 21 as being anticipated by Palmere, we
observe that claim 21 is rather inartfully drafted. Specifically, the limitation “in a
concentration sufficient to produce a mulch ineffective in protecting the mulch from
infestation by termites and effective in killing termites in a colony remote from the
mulch” would mean nothing to one of ordinary skill in the termite control art without
some understanding of the total quantity of solution applied to the tree bark and wood
chips. As recognized on pages 6-7 of appellant’s specification, “[t]he percentage of the
borate salt in the cellulose article” is of significance; if the concentration is too high,
termites may be repelled and not eat the cellulose and if the concentration is too low,
loss of the borate salt into the adjacent soil from the cellulose article may exhaust the
effective supply of the salt prematurely. Further, as evidenced by Palmere (column 15,
lines 36-61), it is understood in the termite control field that it is the quantity of boron
applied to the material in question or, more precisely, the concentration or ratio of
borate salt to wood and bark (brief, page 5), rather than the concentration of the borate
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