Ex parte GAIL S. BAZZANO - Page 4

          Appeal No. 95-4713                                                          
          Application 07/856,157                                                      

          recitation of an antioxidant”.  The thrust of the  103 rejection           
          is the proposed incorporation of antioxidant in Vishnupad’s                 
          composition, per the teachings of Marks.                                    
               The finding that “[t]he claims differ [from Vishnupad] in              
          the recitation of an antioxidant” (Examiner’s Answer, page 3,               
          last paragraph) is clearly erroneous.  The examiner does not                
          point to any portion of Vishnupad disclosing the gelling agent              
          recited in claim 1 (c), namely, “a high molecular weight                    
          polyacrylic acid gelling agent neutralized to a pH of about 3 to            
          about 7".  Furthermore, in the main Brief before the Board,                 
          paragraph bridging pages 8 and 9, appellant argues that Vishnupad           
          does not disclose or suggest the specific gelling agent recited             
          in the claims on appeal.  The examiner does not come to grips               
          with that argument.                                                         
               Where, as here, the examiner’s rejection under 35 USC  103            
          is predicated on a clearly erroneous factual finding, the                   
          rejection cannot stand.  Accordingly, the rejection of claims 1             
          through 3 and 5 through 16 under 35 USC  103 as unpatentable               
          over the combined disclosures of Vishnupad and Marks is reversed.           



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