from the United States Patent and Trademark Office, Patent
Trial and Appeal Board in No. 12/456, 567.
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.
Lourie, Moore, and O'Malley, Circuit Judges.
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.
'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.
is the sole independent claim:
1. An ultra-high load, aqueous glyphosate salt-containing
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
i. from about 10 to about 60 weight percent, based on the
weight of the surfactant system, of one or more ...