(dissenting).
My view of the references differs from that of the majority. Ryker teaches that CMU may be combined with “sodium borates” to give a synergistic weed-killing composition, but does not give a specific example of the two together.. I do not agree that the Ryker reference is “a ‘needle-in-the-haystack’ type of disclosure with respect to borax.” [Emphasis supplied.] Ryker at least teaches the basic combination of the two compo*111nents. We need not look for borax to reject most of the claims. Appellants claim “hydrated1 2alkali metal borate” in claims 15, 16, 20, 21, 22, 24, 25, 28, 29, 30 and 31, which to me is satisfied by the “sodium borates” of Ryker. With regard to the claims that specify borax, I see the secondary references confirming the fact that borax is a commonly known useful component in bi-component weed-killing compositions. From these references it is clear that borax is extensively used as a herbicide component. Appellants appear to have picked the most common member of the broad class claimed.
Just what search in Ryker were appellants forced to make, such that their finding was out-of-the-way, and therefore patentable? Certainly they did not have to search through the 52 aryl alkyl ureas for a particular urea. The search was done for them since the particular “1,3 substituted urea” they used was commercially available as the herbicide CMU or Telvar (used in the affidavit), a product sold by du Pont, Ryker’s as-signee. Appellants acknowledge that, but the thrust of their argument is that sodium borates is buried in a list of 18 classes of compounds, and that borax is even more buried within the class. But, since the class “alkali metal borates” is claimed, we need look only for any member of the class, not the particular member borax. The list of the 18 classes is set out on page 8 of the opinion. It is actually two lists, the asterisks separating the first list of “hormonal type” herbicidal compounds from the remaining list of 14 “contact type” herbicidal compounds. We are concerned only with the list of 14 since it is the contact type which is claimed. Of that list of 14, Ryker gave specific examples of 10.3 Sodium borates are among the remaining four with no examples. The key factor is that the members of the list are not incidental, just “any other herbicidal agent[s],” a “list of other materials which can be used,” as the majority terms them but are a list of the second component of bi-component mixtures such as are disclosed in all of the examples 3 in Ryker.
Thus, choice of the most common member of the borates, borax, combined with a commercially available aryl alkyl urea would, in my view, lead to patent-ability over Ryker and the secondary references only if the results were unexpectedly synergistic.4 That is not shown by the specification, and I find the affidavit equally unpersuasive. As shown in their affidavit, appellants mix these two components of Ryker together and get results somewhat less effective than sodium trichloroacetate plus CMU, which Ryker disclosed in an example. Footnote 4 of the majority opinion can be amplified by noting that, excluding inert filler, 120 lbs. per acre of a 2:1 sodium trichloro-acetate-Telvar5 mixture gives an 87.5% kill at 14 months, while it takes 372 lbs. of an 8:1 borax-CMU mixture to give 96.5% kill, and 186 lbs. per acre give only 52.5% kill. The affiant’s results with sodium pentachlorophenate-Telvar, another specifically disclosed Ryker composition, are better than the results with 186 lbs. per acre of the borax-Telvar mixture. The conclusion affiant makes is not justified by the data he presented; he states:
“ * * * Composition 1 consisting essentially of borax and CMU in which the amount of borax was several times greater than the amount *112of CMU was also superior at all dosages tested (i. e., 20, 30 and 40 pounds of Telvar per acre) to compositions in which ammonium sulfá-mate was substituted for the borax, to compositions in which sodium trichloroacetate was substituted for the borax, to compositions in which sodium pentachlorophervate was substituted for the borax, to compositions containing less borax than CMU, to compositions containing CMU without borax, and to compositions containing borax without ' CMU.
“ * * * It is also apparent from the foregoing test results that the compositions of the present application are superior in their effectiveness to compositions disclosed by Ryker et al., U.S. 2,709,648.” [Emphasis supplied.]
Nor,has there been shown any critical range in the mixture proportions, assuming only comparable effectiveness, which would lead me to conclude that the combination was unobvious. Finally, there is no showing that borax is better than other borates, such that I could pin a conclusion of unobviousness thereon.
The majority characterizes the affidavit results as showing herbicidal effects as so “highly erratic” that the prior art teaching of synergism in the combination is negated. I cannot agree that the affidavit results negate the Ryker teaching of synergism in the combination.
The effect of the majority opinion seems to me to be that an enabling disclosure goes only so far as the examples. The opinion is so sweeping as to support claims which would not include ratios of components or be limited to borax, which leaves us in effect with the two-component combination of Ryker. I cannot agree that Ryker did not put one of ordinary skill in this art in possession of the combination to the extent that what is claimed here is obvious. Neither appellants nor the majority show me that there is any evidence of an unexpected result in the combination.
. There can be no difference predicated on the word “hydrated.” Appellants’ specification acknowledges that borax is a “hydrated compound.”
. Ryker also showed 3 of the 4 in the non-applieable hormonal type, or 13 of 18 total.
. There are 64 examples, 48 of which show bi-component mixes, the remaining 16 showing 1 or the other component in comparison tests.
. I take “synergistic” to mean no more than a product greater thaD the sum of the parts.
. Telvar is 80% CMU according to appellants’ affidavit.