Appeal 2006-3191
Application 10/397,765
degree from crude” (Answer 3). The Examiner recognizes that Durden fails
to disclose melting the pesticide (id.). However, the Examiner concludes
that it would have been obvious to one of ordinary skill in the art at the time
of the invention to melt the pesticide in the method of Durden “because
Durden discloses producing and stirring a liquid mixture made from an
anhydrous product (see column 8, lines 30-40) and a broad melting range
(see column 12, lines 2-4), which would obviously, to one of ordinary skill,
suggest melting the disclosed anhydrous starting material to produce the
disclose [sic] liquid to be stirred” (Answer 4).
Claim 1 on appeal requires that the pesticide particle be subjected to
an azeotropic method to substantially reduce the amount of crystallization
inhibiting impurity (step (c) of claim 1). The Examiner finds that Durden
discloses “removing impurities by azeotropic distillation” (Answer 3).
However, as correctly argued by Appellants (Br. 5; Reply Br. 5), the
azeotropic distillation disclosed by Durden, as cited by the Examiner, refers
to treatment of an aqueous solution of methoxyacetaldehyde, which is a
starting material in the preparation of the pesticide compounds taught by
Durden (Durden 8:30-34). The Examiner has failed to explain how the
azeotropic distillation of a starting material has any relevance to the claimed
azeotropic method applied to the pesticide final product.
The Examiner also finds that Durden discloses “recrystallization to
remove impurities,” as well as the formation of “pure 90.5 degree from
crude” (Answer 3). As correctly argued by Appellants (Reply Br. 6), the
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