975 F. 2d 868 - In Re Donald C Young

Donald C. Young appeals the September 26, 1991 decision of the Patent and Trademark Office Board of Patent Appeals and Interferences, Appeal No. 91-0391, in patent application Serial No. 160,812, filed February 26, 1988, entitled "Foliar Fertilization Methods". Claims 1-9 are directed to compositions for fertilizers and claims 10-19 are directed to methods of using those compositions as foliar fertilizers. We affirm as to the composition claims and reverse as to the method claims.

The Board correctly held that the composition claims did not adequately distinguish from prior art compositions of the identical components, because of the absence of claim limitations as to dosage. Claim text stating assertedly newly-discovered properties of the compositions does not distinguish from references showing or making obvious compositions of the same components in the same amounts.

With respect to the method claims, we agree with the Commissioner that these claims are not subject to the same disability. A prima facie case of obviousness of the method of use is not made by the prior art, for no reference suggests the application of a phytotoxic amount of ammonium ion to fertilize field and row crops in conjunction with the use of magnesium to eliminate the phytotoxic effect. We therefore reverse with respect to the method claims.