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.
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