Appeal No. 2003-2129
Application No. 09/557,044
"[l]iving tissues are delicate structures and inherently require
careful consideration in the selection and use of chemical freeze
protectants" (page 10 of Brief, second paragraph). On this
point, the examiner has not demonstrated that one of ordinary
skill in the art would have had a reasonable expectation of
effectively preventing freezing of an agricultural crop without
damaging the crop during the application process. Stated
otherwise, the examiner has not established that one of ordinary
skill in the art would have had a reasonable expectation that
fermented biomass material would not cause harm to an
agricultural crop. Without the establishment of such a
reasonable expectation of success, all that can be concluded from
the present record is that it may have been obvious to try the
fermented biomass material of Janke, which is taught to be
effective on inorganic structures such as roadways, on a living
agricultural crop. Manifestly, obvious to try is not the proper
standard for establishing obviousness under § 103.
The examiner's rejection of composition claims 9-12 is
another matter. The composition claims on appeal simply define a
composition which includes a fermented biomass as an active
ingredient, and appellant cannot deny that Janke, indeed,
discloses a composition which includes a fermented biomass as an
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