Appeal No. 95-4485
Application 08/097,589
The examiner states that the variability of oil and water
is the one variable disclosed in appellants’ specification for
avoiding emulsion formation, and that the examiner does not
argue
that one of ordinary skill in the art would not have been able
to avoid emulsion formation in view of the information in
appellants’ specification regarding this variable (answer,
pages 7-8). For this reason and because, as discussed above,
the avoidance of the formation of an oil-in-water formation in
appellants’ claimed method may be achieved by manipulating
only the oil to water ratio, the examiner’s nonenablement
rejection is improper.
The examiner argues that the Rule 132 declaration of
Kijowski and Lombardo (filed September 20, 1993) includes some
runs in which the temperature and ingredient ratios fall
within appellants’ claims, yet an oil-in-water emulsion is
formed (answer, pages 3-4 and 6). This argument is not
persuasive because the examiner has not explained, and it is
not apparent,
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