Appeal No. 1997-2198
Application 08/262,953
invention recited in any of appellant’s claims. 2
The examiner argues that Ercoli discloses a composition
containing boric acid, zinc oxide and starch (answer, page 4).
The examiner, however, does not explain where Ercoli discloses
or would have fairly suggested, to one of ordinary skill in
the art,
use of water in combination with these components. Thus, the
examiner has not established a prima facie case of obviousness
over this reference.
The examiner argues that one of ordinary skill in the art
would have arrived at the ratios of components recited in
appellant’s claims, in view of Brodbeck or Ercoli, through no
more than routine experimentation (answer, page 4). The
examiner does not explain, however, and it is not apparent,
2 Appellant states that in this rejection the examiner may
be referring to Keil, U.S. Patent No. 2,289,125 (brief, page
4). Because this reference is not included in the statement
of the rejection it is not properly before us and, therefore,
is not relied upon in reaching our decision. See In re Hoch,
428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
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