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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`
`TIDE INTERNATIONAL (USA), INC.,
`Petitioner,
`
`v.
`
`UPL NA INC.,
`Patent Owner.
`
`__________________
`
`Case IPR2020-01113
`U.S. Patent No. 7,473,685
`__________________
`
`DECLARATION OF DAVID A. ROCKSTRAW, Ph.D., P.E.
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`Table of Contents
`Introduction ...................................................................................................... 1
`II.
`Summary of Opinions ...................................................................................... 1
`III.
`IV. Qualifications ................................................................................................... 4
`V. Materials Considered ....................................................................................... 6
`VI. Legal Principles ............................................................................................... 7
`VII. Technical Background ..................................................................................... 8
`Introduction ........................................................................................... 8
`1.
`Chan highlights the difficulties with preparing granules
`containing high levels of acephate. ........................................... 10
`Yamada highlights the difficulties with preparing granules
`containing high levels of acephate. ........................................... 12
`Cummings confirmed the difficulties with preparing non-
`dusty formulations containing high levels of acephate. ............ 13
`Tide’s references support the difficulties with preparing
`granules containing high levels of acephate. ............................ 15
`Acephate Products Registered by December 18, 2001 ....................... 20
`VIII. Claim Construction ........................................................................................ 23
`IX. Level of Skill in the Art ................................................................................. 25
`X. Ground 1: Misselbrook and CN ’588 in view of JP ’902 .............................. 26
`Claim 1 ................................................................................................ 26
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`2.
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`3.
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`4.
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`1.
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`The proposed combination would have led a POSA to
`develop granules containing excipients excluded from
`claim 1, including a binding agent. ........................................... 26
`2. Misselbrook, JP ’902, and CN ’588 would not have
`rendered obvious the granule of claim 1 containing 0.01-
`1% stabilizer. ............................................................................. 37
`Improper Hindsight ................................................................... 43
`3.
`Claims 2-4 ........................................................................................... 47
`Claim 7 ................................................................................................ 48
`1. Misselbrook, CN ’588, and JP ’902 would not have
`rendered obvious the granule of claim 7 containing 0.01-
`1% stabilizer. ............................................................................. 48
`2. Misselbrook, CN ’588, and JP ’902 would not have
`rendered obvious the granule of claim 7 containing 0.1-3%
`binding agent. ............................................................................ 48
`3. Misselbrook, CN ’588, and JP ’902 would not have
`rendered obvious the granule of claim 7 containing a
`disintegrating agent. .................................................................. 51
`Improper Hindsight ................................................................... 55
`4.
`Claims 8-12 ......................................................................................... 59
`XI. Ground 2: Misselbrook and Mayer in view of CN ’588 ............................... 59
`Claim 1 ................................................................................................ 59
`1.
`The proposed combination would have led a POSA to
`develop granules containing excipients excluded from
`claim 1, including a binding agent. ........................................... 59
`2. Misselbrook, Mayer, and CN ’588 would not have
`rendered obvious the granule of claim 1 containing 0.01-
`1% stabilizer. ............................................................................. 62
`Improper Hindsight ................................................................... 64
`
`iii
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`3.
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`Claim 2-4 ............................................................................................. 72
`Claim 7 ................................................................................................ 72
`1. Misselbrook, Mayer, and CN ’588 would not have
`rendered obvious the granule of claim 7 containing 0.01-
`1% stabilizer. ............................................................................. 72
`2. Misselbrook, Mayer, and CN ’588 would not have
`rendered obvious the granule of claim 7 containing 0.1-3%
`binding agent. ............................................................................ 72
`3. Misselbrook, Mayer, and CN ’588 would not have
`rendered obvious the granule of claim 7 containing a
`disintegrating agent. .................................................................. 74
`Improper Hindsight ................................................................... 75
`4.
`Claims 8-12 ......................................................................................... 79
`XII. Ground 3: Misselbrook and JP ’902 in view of Mayer ................................. 79
`Claim 1 ................................................................................................ 79
`1.
`The proposed combination would have led a POSA to
`develop granules containing excipients excluded from
`claim 1, including a binding agent. ........................................... 79
`The proposed combination would not have rendered
`obvious the granule of claim 1 containing 0.01-1%
`stabilizer. ................................................................................... 80
`Improper Hindsight ................................................................... 82
`3.
`Claims 2-4 ........................................................................................... 85
`Claim 7 ................................................................................................ 85
`1. Misselbrook, JP ’902, and Mayer would not have rendered
`obvious the granule of claim 7 containing 0.01-1%
`stabilizer. ................................................................................... 85
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`2.
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`2. Misselbrook, Mayer, and CN ’588 would not have
`rendered obvious the granule of claim 7 containing 0.1-3%
`binding agent. ............................................................................ 86
`3. Misselbrook, JP ’902, and Mayer would not have rendered
`obvious the granule of claim 7 containing a disintegrating
`agent. ......................................................................................... 88
`Improper Hindsight ................................................................... 89
`4.
`Claims 8-12 ......................................................................................... 93
`XIII. Conclusion ..................................................................................................... 93
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`II.
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`Introduction
`1. My name is David A. Rockstraw. I have been retained by Finnegan,
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`Henderson, Farabow, Garrett & Dunner, L.L.P. for patent owner UPL NA Inc. as
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`an independent expert in connection with the Inter Partes Review of U.S. Patent
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`6,743,685 (the ’685 patent) in IPR2020-01113. I am being compensated for the
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`time I spend on this matter, but no part of my compensation is dependent on the
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`outcome of this proceeding.
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`2. My declaration responds to the arguments presented in the Petition of
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`Tide International (USA), Inc. (“Petition”) and to the declaration of William
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`Geigle in support of Tide’s Petition. Paper 2; Ex. 1003.
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`III. Summary of Opinions
`I conclude that the combinations in Grounds 1-3 of the Petition would
`3.
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`not have rendered obvious the granules of claims 1-4 or 7-12 of the ’685 patent.
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`4.
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`First, claims 1-4 all require a granule consisting of 85-98% acephate
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`in combination with a precise set of five excipients—and only five excipients—in
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`specific amounts. Ex. 1001, claims 1-4. But the publications in Grounds 1-3 would
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`have motivated a person of ordinary skill in the art (POSA) to prepare granules
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`with excipients not recited in these claims, including at least a binding agent. Tide
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`failed to show that any combination of publications would have resulted in a
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`granule without a binding agent. In other words, no combination would have
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`motivated a POSA to prepare the granule of claims 1-4 of the ’685 patent. See
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`infra, Sections X.A.1, XI.A.1, XII.A.I.
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`5.
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`Indeed, Tide’s publications and the background art such as Knowles
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`(Ex. 1024) would have motivated a POSA to add over 4% binding agent to a
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`granule to reduce dustiness. As a result, the combinations of Grounds 1-3 would
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`have failed to motivate a POSA to prepare the granule of claims 7-12, which
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`require 0.01-3% binding agent. See infra, Sections X.C.2, XI.C.2, XII.C.2.
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`6.
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`Next, Tide failed to show that any combination in Grounds 1-3 would
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`have motivated a POSA to prepare a granule containing only 0.01-1% stabilizer, as
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`required by claims 1-4 and 7-12 of the ’685 patent. See infra, Sections X.A.2,
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`X.C.1, XI.A.2, XI.C.1, XII.A.2, XII.C.1. Tide argues that a POSA would have
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`optimized the amount of a stabilizer using tests such as accelerated aging. But even
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`if a POSA would have been motivated to prepare a chemically stable granule of
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`acephate, none of the publications cited by Tide provide any scientific basis to
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`expect that a POSA would optimize the level of stabilizer to 0.01-1%. In fact, the
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`sole publication cited by Tide that reports stability data for formulations containing
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`acephate (CN ’588, Ex. 1007) shows that stabilizers in amounts that greatly exceed
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`the claimed range failed to prevent decomposition of acephate.
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`7.
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`For claims 7-12, Tide additionally failed to show that the cited
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`publications would have motivated a POSA to include a disintegrating agent to the
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`granules of Misselbrook. Rather, the art strongly suggests that in formulations
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`comprised largely of a water-soluble pesticide and a water-soluble binder, no
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`disintegrating agent is required. See infra, Sections X.C.3, XI,C.3, XII.C.3.
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`8.
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`Next, Tide’s arguments are all driven by hindsight. The art cited by
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`Tide provides no scientific basis for preparing any granule claimed in the ’685
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`patent. To arrive at these granules, a POSA would have needed to make several
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`choices that are not taught in—and at times contradicted by the teachings of—the
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`prior art. See infra, Sections X.A.3, X.C.4, XI.A.3, XI.C.4, XII.A.3, XII.C.4.
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`9.
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`For completeness, I note that the disclosures in two of Tide’s four
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`publications were cited and/or discussed during prosecution. In particular,
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`Misselbrook (Ex. 1005) contains the same disclosures as Lescota (Ex. 1020),
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`which was discussed in two rejections by the Examiner. Ex. 1002, 42-43, 113-14.
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`Next, CN ’588 (Ex. 1007) is a foreign counterpart to Yamada (see Ex. 2003,
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`Ex. 2004), which was cited during prosecution. Ex. 1002, 31, 46. In my opinion,
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`the Examiner properly allowed the claims over these references, and even
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`considering these references in combination with Tide’s other references (Mayer
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`and JP ’902), a POSA would not have had any scientific rationale for preparing the
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`granules of 1-4 or 7-12 of the ’685 patent.
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`IV. Qualifications
`I have extensive educational training and industry experience in the
`10.
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`field of chemical engineering. Over the past 35 years, I have worked in the
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`chemical processing industries; academia; government labs; and private practice as
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`a consultant, R&D engineer, expert witness, and forensic analyst. I have diverse
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`experience that includes background in commodity chemicals manufacture;
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`energy; water; petrochemicals; pharmaceuticals; agricultural chemicals;
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`fluorochemicals; monomers, polymers and plastics; plutonium processing;
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`membrane/electromembrane processes; safety; biofuels; and processed foods.
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`11.
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`I currently hold the position titles of (1) Robert Davis Distinguished
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`Professor, (2) New Mexico State University Distinguished Achievement Professor,
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`and (3) Academic Department Head of Chemical & Materials Engineering. I am
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`also the creator and former Director of the NMSBrew Brewery Engineering
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`program at New Mexico State University (“NMSU”), which won the American
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`Institute of Chemical Engineers brewing national championship in 2019, and have
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`recently served as Interim Department Head of the Aerospace & Mechanical
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`Engineering programs. I have been employed at NMSU since 1995 and was
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`tenured in 2000.
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`12.
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`I hold a Bachelor of Science in Chemical Engineering from Purdue
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`University and a Doctor of Philosophy (Ph.D.) from The University of Oklahoma.
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`13.
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`I am a Fellow of the American Institute of Chemical Engineers
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`(AICHE), and a former National Director of the National Society of Professional
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`Engineers (also receiving the 2009 Engineering Education Excellence Award from
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`NSPE). I am currently a licensed professional engineer in the states of New
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`Mexico and Texas.
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`14.
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`I have over twelve years of process R&D experience with DuPont,
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`Conoco, Ethyl, Kraft, and Los Alamos National Laboratory including pilot and
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`scale-up of (1) catalytic and non-catalytic hydrodechlorination reactors and
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`associated process plants for the manufacture of the hydrofluorocarbon refrigerant
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`1,1,1,2-tetrafluoroethane; (2) salt-supported sodium/potassium eutectic alloy
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`catalyst blend, and subsequent use in 3-phase catalytic coupling reactor to produce
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`isobutylbenzene (an intermediate to ibuprofen for which two patents were issued);
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`(3) heterogeneous (two liquid phases) catalytic reactor and process plant for the
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`depolymerization of polytetramethylene ether glycol, (4) crystal habit modification
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`to reduce bed pressure drop in solids filtration from aqueous plutonium streams,
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`(5) process analysis of a bioethanol production facility based on cheese lactose
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`feedstock, among other projects.
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`15. At DuPont, I was lead process research engineer for a multi-step
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`process to manufacture methyl 3-hydroxy-2-thiophenecarboxylate, an intermediate
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`to the active compound in a dry flowable herbicide formulation. This process
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`involved numerous chemical reactions and separations and, ultimately, formulation
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`and granulation of the final product.
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`16. As Senior Research & Development Engineer for Ethyl Corporation, I
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`developed and patented a reaction system for the manufacture of isobutylbenzene,
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`an intermediate in the production of ibuprofen. The reaction system involved
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`gaseous and liquid reactants with a eutectic metal catalyst (also the subject of a
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`patented invention that is attributed to me). I was trained to operate a commercial
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`granulation/tableting system during this project.
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`17. As a co-operative engineering student employed at Kraft, Inc., I was
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`responsible for the set-up, operation, and clean-up of a wide variety of extrusion
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`equipment.
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`18.
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`I am a named inventor on three United States Patents, which are listed
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`in my curriculum vitae (CV), and I have authored or co-authored more than eighty
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`professional papers and conference contributions.
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`19. Further detail on my education, work, and teaching experience, and
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`the cases in which I have previously given testimony in at least the past six years
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`are contained in my CV (Ex. 2008).
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`V. Materials Considered
`In forming my opinions, I considered Tide’s petition, Exhibits 1001 to
`20.
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`1035, and all exhibits and information cited or discussed in my declaration,
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`including those listed in Table 1 (below). I also relied on my experience,
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`education, and knowledge of the art. I further relied on information contained in
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`the publicly accessible database maintained by the U.S. Environmental Protection
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`Agency, available at https://iaspub.epa.gov/apex/pesticides/f?p=PPLS:1, which
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`contains information about registered pesticide products, including product labels.
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`Table 1
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`Publication
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`Exhibit No.
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`Yamada, U.S. Patent No. 5,488,043
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`Cummings, WO 98/26656
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`Chan, U.S. Patent No. 5,075,058
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`Sanyo Chemical Product Outline
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`2003
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`2005
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`2006
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`2009
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`VI. Legal Principles
`21. Claim construction. I understand that patent claims must be
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`interpreted from the perspective of a person of ordinary skill in the art in the
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`context of the patent specification.
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`22. Obviousness. I understand that determining whether a patent claim is
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`obvious requires analysis of four components: (1) the scope and content of the
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`prior art; (2) the differences between the claimed subject matter and the prior art;
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`(3) the level of skill in the art; and (4) objective evidence of non-obviousness.
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`23.
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`I understand that when assessing the prior art, one should consider
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`whether a person of ordinary skill in the art would have been motivated to combine
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`the disclosures in the prior art to achieve the claimed invention, and whether the
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`person of ordinary skill in the art would have had a reasonable expectation of
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`success in doing so.
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`24.
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`I am informed that where the prior art “teaches away” from the
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`claimed invention, that may show the invention would not have been obvious.
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`I understand that the prior art teaches away when it would have led a POSA in a
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`direction divergent from the path that was taken by the patent inventors.
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`25.
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`I am informed that it is improper to use hindsight when evaluating
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`obviousness. In other words, it is improper to use the patent as a roadmap to
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`combining prior art references to arrive at the claimed invention.
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`VII. Technical Background
`Introduction
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`26. The ’685 patent describes and claims innovative granular formulations
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`containing a high level of acephate in combination with a precise set of five or
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`seven excipients.
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`27. Tide repeatedly argues that combining these ingredients and amounts
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`to arrive at a granule containing 85-98%1 acephate would have been a matter of
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`routine experimentation and optimization. E.g., Petition at 21-23, 26, 27, 29, 34,
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`36.
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`28.
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`I disagree. The field of pesticide formulation is an unpredictable art.
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`At times, extensive experimentation is required to arrive at a workable solution.
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`29. The art here reveals that preparing granules containing 85-98%
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`acephate had proven difficult. Some of these difficulties are described in the
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`background sections of the ’685 patent. Ex. 1001, 1:61-2:20. These difficulties
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`underscore the unpredictable nature of pesticide formulations.
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`30. Certain prior art publications proposed solutions to the problems with
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`acephate formulations. However, the solutions proposed in the prior art differed
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`markedly from the solution provided by the claimed invention, supporting the
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`conclusion that it was not a simple matter of optimizing ingredients and amounts to
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`arrive at the claimed granules.
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`1 All percentages in my declaration refer to weight percentages unless
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`otherwise noted.
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`1.
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`Chan highlights the difficulties with preparing
`granules containing high levels of acephate.
`31. U.S. Patent No. 5,075,058 (“Chan”) (Ex. 2006) assigned to Chevron
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`Research and Technology Company (“Chevron”) underscores the difficulties with
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`preparing granules containing high levels of acephate.
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`32. Chan explained that as of 1990, commercially available granular
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`acephate (branded ORTHENE®) contained “relatively small amounts of
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`ORTHENE®, typically no more than 5% active ingredient. Attempts to
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`manufacture technical assay (approximately 97% active ingredient) ORTHENE®
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`pellets from the dry ORTHENE® technical powder have heretofore been
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`unsuccessful.” Chan, 2:61-67.
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`33. As Chan further explained:
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`An agglomerate form of ORTHENE® which also minimizes
`airborne contamination due to dust, has been constrained to
`dilute concentrations of ORTHENE® applied to large particles
`by spraying and then dried or as a dilute concentration of
`ORTHENE® combined with binders and anti-caking agents to
`form agglomerates via processes known to those skilled in the
`art, such as, pan granulation, extrusion, fluid granulation,
`pelletizing. The concentration of ORTHENE ® via these
`methods has heretofore been limited to a concentration no
`greater than about 36% to 50%, with known commercial
`products typically no more than 5% ORTHENE.
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`Ex. 2006, 2:3-15.
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`
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`34. Chan identified at least two issues contributing to the difficulties of
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`preparing granules containing high levels of acephate.
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`35. First, Chan explained that the “limit on concentration of ORTHENE®
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`was due to the melt property of ORTHENE® limiting the feasible operability of
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`this form of the product.” Ex. 2006, 2:15-17. In other words, acephate’s relatively
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`low melting temperature (81-91 °C) made preparing granules difficult. See Ex.
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`1012, 25 (listing melting point of acephate as 81-91 °C).
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`36. Second, according to Chan, the concentration of acephate was limited
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`by the “ability of binding agents to form agglomerates, i.e. a minimum amount of
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`any particular binding agent is required in order to meet physical properties of
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`attrition resistance, crush strength and bulk density.” Ex. 2006, 2:17-22.
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`37. Chan proposed to overcome these difficulties by preparing pellets
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`containing acephate in combination with other active ingredients. Ex. 2006, 5:3-22.
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`For example, Chan stated that it was “particularly advantageous to combine
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`ORTHENE® insecticides in a pellet with other insecticides . . . .” Ex. 2006, 5:6-8.
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`38.
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` Notably, the ’685 patent claims do not recite any insecticide in
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`combination with acephate. The solution provided in the ’685 patent is thus very
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`different from the solution proposed by Chan.
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`2.
`
`Yamada highlights the difficulties with preparing
`granules containing high levels of acephate.
`39. As an added complication, acephate is susceptible to degradation.
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`40. As explained by Yamada, compared to “other organic phosphoric
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`compounds having an insecticidal activity, acephate has a lower stability in a
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`pesticidal formulation. Accordingly, acephate in the formulation is vigorously
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`decomposed depending on the storage condition and the activity of acephate could
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`not be often exhibited efficiently.” Ex. 2003, 1:15-20.
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`41. Yamada proposed to overcome this difficulty by combining acephate
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`with specific stabilizers. Ex. 2003, 1:25-67.
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`42. However, even when such stabilizers were used at levels of about
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`1 part stabilizer to 1 part acephate, the acephate content degraded over time.
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`Ex. 2003, 3:20-4:43.
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`43. Notably, Yamada did not describe the preparation of any granule
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`containing 85-98% acephate and 0.01-1% stabilizer, much less indicate whether
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`acephate would be chemically stable in such granules.
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`44. Yamada thus does not appear to provide a workable solution to the
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`problems with preparing granules containing 85-98% acephate. In fact, Yamada’s
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`wettable powders contain, at most, 25% acephate. Ex. 2003, 3:30-48.
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`3.
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`Cummings confirmed the difficulties with preparing
`non-dusty formulations containing high levels of
`acephate.
`45. PCT publication no. WO 98/26656 (“Cummings”) further supports
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`the difficulties with preparing non-dusty formulations such as pellets containing
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`high levels of acephate. Ex. 2005, 4-5.
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`46. For example, Cummings disclosed that “[t]he present inventors have
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`conducted considerable experimentation in the area of producing high-strength
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`acephate pellets, and have confirmed the manufacturing difficulties which the
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`Chevron inventors [e.g., Chan] apparently experienced.” Ex. 2005, 4-5.
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`47. Cummings explained that “acephate technical powder has a tendency
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`to clump and agglomerate over time, and has proven to be difficult to process, as
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`recognized in the art.” Ex. 2005, 10.
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`48. Cummings developed certain processes to overcome the difficulties
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`with preparing non-dusty pellets containing a high level of acephate, including by
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`controlling the temperature inside the extrusion barrel. Ex. 2005, 15-17.
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`49. Cummings stated that when using the processes disclosed therein,
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`pellets containing high levels of acephate could be prepared “using only water as a
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`processing aid.” Ex. 2005, 11. According to Cummings, pellets could be prepared
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`containing 97%, 98%, or even 99% acephate with no other excipients. E.g.
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`Ex. 2005, 24 (“The purpose of this trial was to test prepare [sic] high strength
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`pellets without any processing aids, such as the Agrimer VA-6.”); id., 31-32 (tables
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`showing acephate concentrations in pellets).
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`50. Alternatively, pellets containing high levels of acephate could be
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`prepared using a single excipient, Agrimer VA-6, described as a processing aid.
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`E.g., Ex. 2005, 11.
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`51. Notably, Cummings did not provide a solution to the difficulties with
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`preparing granules containing high levels of acephate. Rather, Cummings
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`disclosed processes to prepare pellets.
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`52. Cummings distinguished the pellets disclosed therein from granules as
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`follows: “In contrast to the pellets of the present invention, the granules disclosed
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`in [patents to ICI Australia Operations Property Ltd., ‘ICI’] are designed to have
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`rapid dispersion and superior suspensibility in water.” Ex. 2005, 5-6. Cummings
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`further noted that the granules in the ICI patents “normally have a surfactant
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`component and/or a binding agent” and did not include acephate or any other
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`insecticides belonging to the same class as acephate. Ex. 2005, 6.
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`53. Thus, while Cummings disclosed an efficient, low-cost route to
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`preparing chemically stable, non-dusty acephate pellets, it did not describe a
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`method for preparing granules containing 85-98% acephate.
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`4.
`
`Tide’s references support the difficulties with
`preparing granules containing high levels of acephate.
`It is notable that from among the available patent and non-patent
`
`54.
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`literature, Tide identified a single prior art reference providing examples of
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`granules containing 85-95% acephate. Below, I briefly summarize Tide’s four
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`prior art references: Misselbrook (Ex. 1005), CN ’588 (Ex. 1007), Mayer (Ex.
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`1010), and JP ’902 (Ex. 1009).
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`a. Misselbrook
`55. Misselbrook discloses pesticidal compositions comprising a water-
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`soluble pesticide, preferably emamectin or an agriculturally acceptable salt thereof.
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`Ex. 1005, 2:55-56, 2:66-67. Misselbrook discloses that the composition may be
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`provided as a wettable powder, water-soluble granule, aggregate, matrix, or a
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`monolith such as a brick, pellet, tablet, stick, film, sheet, and the like. Id., 3:22-27.
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`Misselbrook states that preferably, the pesticidal composition is “embedded in a
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`water-soluble matrix or monolith.” Id., 3:28-29.
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`56. Misselbrook focuses on compositions comprising emamectin benzoate
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`with water-soluble binding agents2 such as lactose, sucrose, and glucose that
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`2 I discuss these binding agents in greater detail in Section X.A.1 of my
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`declaration.
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`optionally comprise additional excipients. See id., 3:34-4:32, 9:20-12:25.
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`Misselbrook’s specific formulations are limited to—at most—60% emamectin
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`benzoate. Id. Misselbrook does not disclose how to prepare granules containing 85-
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`98% pesticide or provide any disclosure of specific ingredients and amounts
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`thereof to include in such a granule. E.g., id. Misselbrook repeatedly discloses that
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`binding agents such as lactose should be present at levels of at least 30%, e.g.,
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`levels that preclude incorporating 85-98% pesticide. Id., 3:36-37, 3:45-4:32.
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`57. Misselbrook mentions acephate among a list twelve pesticides, and in
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`the same passage, reiterates that emamectin is “particularly preferred.” Ex. 1005,
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`5:32-43. Misselbrook does not provide any examples or specific formulations
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`containing acephate. Nor does Misselbrook propose any process, method, or
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`formulation to overcome the difficulties described above. I discuss Misselbrook in
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`detail below in the context of Grounds 1-3 of the Petition.
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`CN ’588
`b.
`58. Like Misselbrook, CN ’588 does not propose any process, method, or
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`formulation to overcome the difficulties described above. And like Misselbrook,
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`CN ’588 does not describe any granules containing acephate. E.g., 1007, 6.
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`Instead, CN ’588 generally provides a laundry list of potential preparations, stating
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`that the dry pesticide preparation “can be a dustable powder, non-floating dustable
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`powder, wettable powder, water soluble powder, granule, water soluble granule,
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`water dispersible granule, dry flowable, tablet or pill.” Id., 5-6. The specific
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`embodiments of CN ’588 are wettable powders containing 25% acephate. Id., 6.
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`While CN ’588 focuses on two purported stabilizers for acephate, the data in the
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`publication shows that acephate decomposed as formulated in the presence 20-30%
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`of the disclosed stabilizer(s). Id., 2 (abstract), 7-8 (showing decomposition rates of
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`acephate from accelerated aging studies). I discuss CN ’588 in greater detail in the
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`context of my specific responses to the arguments in the Petition.
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`c. Mayer
`59. Like Misselbrook and CN ’588, Mayer does not propose any process,
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`method, or formulation to overcome the reported difficulties with preparing
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`granules containing 85-98% acephate. See generally Ex. 1010. And like
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`Misselbrook and CN ’588, Mayer does not describe any granules containing
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`acephate. In fact, Mayer fails to mention acephate at all, despite providing a
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`lengthy list of preferred pesticides spanning nearly two columns of the patent. Id.,
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`2:21-3:59. I discuss Mayer in greater detail below.
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`JP ’902
`d.
`JP ’902 describes pesticide granules that “prevent caking and
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`60.
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`experience very little dusting.” Ex. 1009, 3 (abstract). JP ’902 identifies over 30
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`insecticides, over 40 fungicides, and over 40 herbicides that may be included in the
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`granules, either alone or in combination. Id., [0006]-[0007].
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`61.
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`In contrast to the other publications relied on by Tide, which do not
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`disclose any acephate granules, JP ’902 provides examples of granules containing
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`acephate (alone or in combination with other active ingredients). See id., [0020],
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`[0021], [0024], [0025], [0027].
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`62.
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`JP ’902 provides two examples of granules containing 95% acephate,
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`Reference Example 4 and Example 6. Id., [0018], [0024].
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`63. Reference Example 4 (Granules D) contained 95% acephate in the
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`presence of a binder, additional excipients, and 8% water. Ex. 1009, [0018]. When
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`the resulting granules were mixed with water (as they would be when used in the
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`field), most of the product did not disintegrate, e.g., it remained caked at the
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`bottom of the container. Id., [0018], [0030], [0031] (reporting results of
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`disintegration tests). Reference Example 4 (Granules D) thus exemplifies certain
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`difficulties in preparing granules containing 85-98% acephate. An excerpt from JP
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`’902 is included below for reference.
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`Figure 1.
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`JP ’902, [0030], [0031], highlighted.
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`64. Example 6 of JP ’902 describes granules containing acephate in
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`combination with a surfactant, a colorant, an anticaking agent, and a binder
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`(lactose), which were kneaded then granulated in the presence of 4% water.
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`Ex. 1009, [0015], [0024]. While JP ’902 provides information on the disintegration
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`of this granule, it does not provide any information regarding the chemical stability
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`of acephate in the formulation. It is thus unclear whether JP ’902 provided a
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`workable solution to the difficulties with preparing granules containing 85-98%
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`acephate. I note that Tide does not rely on Example 6 of JP ’902 as the starting
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`point in its arguments. Example 6 discloses a very different set of ingredients than
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`claimed in the ’685 patent, and Tide does not attempt to show any path (much