Appeal No. 1999-1321
Application No. 08/625,495
94.4%1), ethanol (3% to 10%), and an herbal concentrate that could be rosemary
oil (2.5 to 15%). See column 9, lines 35-54. Joanides discloses cosmetic
compositions comprising egg whites, citrus fruit extract, vegetable oil (15% to
45%), ethanol (5% to 15% of distilled spirits), and “up to 1% . . . rosemary
essential oil.” Page 3, line 4 to page 4, line 8. Melnicake discloses insecticidal
compositions comprising pyrethrum, a known insecticide. Melnicake teaches
that combining pyrethroids with “oil of pepper” synergistically improves their
insecticidal activity. Page 1, lines 90-95. Melnicake discloses that the
composition can also contain quassia (page 2, lines 122-125), “other essential
oils,” (page 3, lines 1-4), and “polyhydric alcohols e.g. propylene glycol and
triethylene glycol” (page 3, lines 10-12).
The examiner concluded that a person of ordinary skill in the art would
have been motivated to combine the teachings of these references to produce
the claimed compositions “because of the known beneficial properties of the
combination of volatile oil, fixed oil and alcohol as demonstrated by the
references in a variety of pharmaceutical or veterinary applications and because
of their known properties to kill and/or repel insect pests.” Examiner’s Answer,
page 6.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of going forward with evidence or argument shift to the
1 Stoltz’s percentages are “% by weight,” see col. 9, line 40, while the claimed compositions are
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