Appeal No. 2007-0180 Page 3
Application No. 10/663,843
45, 60-61. Answer 4: 9-10. These values overlap with the amounts recited in
claim 1 of “(b) 2 to 15% by weight of at least one surfactant.”
Preferred solvents are described by Schmitt as dibutyl phthalate and butyl
benzoate. Col. 3, ll. 9-12. Example 1 describes the use of butyl benzoate as a
solvent (col. 5, l. 35), which is a solvent recited in instant claim 5 (“wherein the
aromatic ester solvent (c) [of claim 1] is . . . butyl benzoate”). The solvents can be
present in amounts of “more than 20% by weight,” which are overlapping with
claim 1 (“(c) 15 to 90% by weight of at least one aromatic ester solvent”).
Schmitt’s composition can also contain an insecticide, preferably a
phosphoric ester, carbamates, pyrethroid, or nitroimine. Col. 4, ll. 22-48; col. 8, ll.
25, 30 (listing the pyrethroids cypermethrin and permethrin). Answer 4: 2-3.
The insecticide can be present in 0.001 to 10% by weight. Col. 4, ll. 52-53.
Answer 4: 3-4. The amounts of insecticide in Schmitt’s composition overlap with
the amounts which are recited in claim 1 (“(a) 1 to 60% by weight of a pyrethroid
compound”).
The Examiner states that the difference between the claimed invention and
Schmitt is that Schmitt does not “explicitly exemplify a combination of a
pyrethroid, surfactant, and an aromatic solvent such as butyl benzoate” as required
by claim 1. Answer 4: 16-18. However, the Examiner asserts that butyl benzoate
[an “aromatic ester solvent”] is described (col. 3, l. 12) as preferred. Answer 4.
The Examiner states that use of a pyrethroid in Schmitt’s composition would have
been obvious because Schmitt explicitly suggests the addition of other fungicides
or insecticides “for the purpose of increasing the spectrum of action or to achieve
specific effects” and lists pyrethroids in its claimed composition (col. 8, ll. 8-30).
Answer 4-5; See also Schmitt, col. 3, ll. 27-32.
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