Appeal No. 2006-0370 Application 09/552,044 REJECTION 3 We shall also affirm the rejection based upon Ludwig since, in our opinion, Ludwig anticipates the instantly claimed system. Alternatively, it would have been prima facie obvious within the purview of 35 U.S.C. § 103 to have chosen one of the sulphenamide fungicides disclosed by Ludwig (col. 5, l. 55-56), to increase the activity or action spectrum of the reference composition, to be used in combination with a “particularly preferred” alkyd resin binder (col. 4, l. 57-59), absent a showing of any new or unexpected result. As noted by the examiner, the Ludwig compositions are disclosed as being “water-based” formulations, and as being “storage-stable” (col. 2, l. 12-16). Also, the instant claims are open to the inclusion of other ingredients, such as the primary azole and quaternary ammonium fungicides of Ludwig. For the foregoing reasons, appellants’ arguments relating to an alleged lack of motivation to select their specific combination of sulphenamides and binders are not persuasive. We also agree with the examiner that the appellants have the burden of establishing that the preferred binders of Ludwig do not satisfy the pH condition set forth in the instant claims. 5Page: Previous 1 2 3 4 5 6 7 NextLast modified: November 3, 2007