Appeal No. 94-1540
Application 07/861,558
In relevant part, the examiner=s rejection proposes to use as the ointment base
in Browning, the gel base described in Blackman which contains 90-99.5%
polyethylene glycol. Assuming arguendo the propriety of such a combination, the
examiner has not provided a cogent explanation as to how that combination necessarily
results in the claimed subject matter. The ointment base of Browning is used in an
amount within the range of from about 25-75% by weight. If one were to use the gel
base of Blackman as the ointment base in Browning it would appear that, at most, the
content of polyethylene glycol in the resulting composition would be about 75% (99.5%
of 75% is approximately 75%). Appellants argue this as a point of distinction between
the claimed invention and the composition suggested by the combination of references
proposed by the examiner in the paragraph bridging pages 4-5 of the Appeal Brief.
The Examiner=s Answer simply does not come to grips with this argument.
The prior art rejection is reversed.
The decision of the examiner is affirmed.2
2 We note in passing that appellants state that this application is a
continuation-in-part of Application 07/585,666, now U.S. patent 5,112,620. However,
the specification of this application does not contain a reference to this parent
application as required by 35 U.S.C. ' 120.
4
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