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In re Stepan Co.

United States Court of Appeals, Federal Circuit

August 25, 2017

IN RE: STEPAN COMPANY, Appellant

         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 12/456, 567.

          Thomas J. Wimbiscus, McAndrews, Held & Malloy, Ltd., Chicago, IL, argued for appellant. Also represented by George Wheeler.

          Jeremiah Helm, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for appellee Joseph Matal. Also represented by Nathan K. Kelley, Thomas W. Krause, Frances Lynch.

          Before Lourie, Moore, and O'Malley, Circuit Judges.

          OPINION

          Moore, Circuit Judge.

         Stepan Company ("Stepan") appeals from a decision of the Patent Trial and Appeal Board ("Board") affirming the examiner's rejection of claims 1-31 of U.S. Patent Application No. 12/456, 567 ("the '567 application"). For the reasons discussed below, we vacate and remand.

         Background

         The '567 application is directed to herbicidal formulations containing glyphosate salt with a surfactant system. Surfactants can enhance glyphosate's effectiveness as an herbicide by providing better adherence to leaves, thereby enhancing penetration. According to the specification, "[t]he present invention is based on the unexpected discovery that surfactant systems comprising dialkoxylated alkylamine, water miscible solubilizer and amine oxide allow for formulation of ultra-high loaded ('high-strength') glyphosate salt concentrates possessing high or no cloud points." J.A. 29 ¶ 13. A cloud point is the temperature at which a solution becomes cloudy due to the surfactants becoming insoluble and separating into layers. Cloudiness can be avoided if the cloud point is higher than the solution's temperature or if the solution is cooled before adding the surfactant. The specification explains that because glyphosate salt is created at about 75ºC, it is advantageous to formulate glyphosate with a surfactant system exhibiting a high cloud point to "obviate the necessity of waiting for the temperature of the glyphosate salt reaction product to cool down." J.A. 27-28 ¶ 7. Surfactant systems with high cloud points or no cloud point, in which the solution never becomes cloudy, allow for quicker formulation of glyphosate concentrates and thus quicker delivery to the market. Id.

         Claim 1 is the sole independent claim:

1. An ultra-high load, aqueous glyphosate salt-containing concentrate comprising:
a. water;
b. glyphosate salt in solution in the water in an amount greater than about 39 weight percent of acid equivalent, based on the weight of the concentrate, said glyphosate salt being selected from the group consisting of the isopropylamine salt of glyphosate, the potassium salt of glyphosate, mixtures of the isopropyla-mine salt and the potassium salt of glyphosate and mixtures of the potassium salt and the ammonium salt of glyphosate;
c. a surfactant system in an amount ranging from about 1 to about 20 weight percent, based on the weight of the concentrate, comprising:
i. from about 10 to about 60 weight percent, based on the weight of the surfactant system, of one or more ...

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