Appeal No. 2003-0529
Application No. 09/213,045
for the “other adjuvants” are taught as being “less than 5%,
preferably less than 3%” (column 15, lines 39-40).
In our view, Wixon’s teachings are not sufficiently
specific to have placed one of ordinary skill in the art in
possession of the claimed invention, because one of ordinary
skill in the art would have had to resort to “picking, choosing,
and combining various disclosures” to arrive at a composition
encompassed by the appealed claims. Arkley, 455 F.2d at 587,
172 USPQ at 526.
Furthermore, we agree with the appellants’ statement
(appeal brief, page 10) that Wixon does not describe a
transparent bottle as recited in the appealed claims. While the
examiner argues (answer, page 3) that “[t]he disclosure of
packaging by Wixon encompasses any plastic or glass material,
which would include translucent or transparent glasses and
plastics,” such an argument is not appropriate in a rejection
under 35 U.S.C. § 102.
For these reasons, we reverse the examiner’s rejection
under 35 U.S.C. § 102(b) of appealed claims 6 through 8 as
anticipated by Wixon.
The decision of the examiner is reversed.
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