Appeal No. 2006-0333 Page 2
Application No. 09/798,181
The examiner relies upon the following references:
Wenderoth et al. (Wenderoth) 4,829,085 May 09,1989
Nuninger et al. (Nuninger) 5,723,491 Mar. 03, 1998
Claims 1, 5 and 10 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Nuninger and Wenderoth. After careful review
of the record and consideration of the issues before us, we reverse.
DISCUSSION
Nuninger is relied upon for teaching that in methods of controlling and/or
preventing Oomycetes diseases, “the R-enantiomer of metalaxyl results in higher
fungicidal activity compared to racemic metalaxyl . . . and teaches . . .
compositions wherein 85%, over 92% and more than 97% R-enantiomer is
present . . . .” Examiner’s Answer, page 4.
Wenderoth is cited for teaching methods of cambating fungi using oxime
ethers. See id. According to the examiner, the reference teaches that the
compounds have high fungicidal activity, with the methyl (E)-2-methoxyimino-[2-
o-tolyoxymethyl)phenyl]acetate compound being specifically named, and that the
compounds may be combined with other fungicides to achieve greater fungicidal
activity. See id. at 4-5.
The examiner concludes:
The references do not teach the method wherein the
compounds are combined together in a single, synergistic
composition. However, at the time of the claimed invention, it
would have been obvious to one of ordinary skill in the art to
combine the compounds of Wenderoth and Nuninger for their
known and common effect, as disclosed by the references, since
each is well known in the art for their claimed purpose. Moreover,
at the time of the claimed invention, one of ordinary skill in the art
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