Appeal No. 94-3436
Application 07/849,490
ethanol extract taught by Belkevich. The sterol and estrogen
compounds in Belkevich's extract are not water soluble as pointed
out in paragraph 3 of the Kukla declaration. Plainly, Belkevich
does not describe, in the sense of 35 U.S.C. § 102, or suggest to
the person of ordinary skill in the art a water soluble peat-
derived bioactive product.
The examiner's rejection as it is founded on 35 U.S.C. § 103
is apparently based on speculation that the Belkevich extract
could "conceivably contain water soluble components in addition
to the [disclosed] water insoluble components." However, silence
in a reference is hardly a proper substitute for an adequate
disclosure of facts from which a conclusion of obviousness may
justifiably follow. In re Burt, 356 F.2d 115, 121, 148 USPQ 548,
553 (CCPA 1966).
The decision of the examiner is reversed.
REVERSED
)
RONALD H. SMITH )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
ANDREW H. METZ )
Administrative Patent Judge ) APPEALS AND
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