Appeal No. 95-2416
Application 07/892,484
sensitive receptors from eating said treated birdseed, with the
proviso that said treated birdseed does not have effective
amounts of other ingredients that would repel wild birds.
24. A method of selectively repelling animals having
capsaicin sensitive receptors, which comprises feeding said
treated birdseed of claim 23 to birds in an amount effective for
repelling animals having capsaicin sensitive receptors from
eating said treated whole birdseed.
The references of record relied upon by the examiner are:
Myers 321,909 Jul. 7, 1885
Cartwright 826,990 Jul. 24, 1906
Glabe et al. (Glabe) 4,161,543 Jul. 17, 1979
Sann et al. (Sann), “Effect Of Capsaicin Upon Afferent And
Efferent Mechanism Of Nociception And Temperature Regulation In
Birds,” Can. J. Physiol. Pharmacol., Vol. 65 (1987) pp. 1347-
1354.
The appealed claims stand rejected for obviousness (35
U.S.C. § 103) over Cartwright in view of Glabe. As evident from
the discussion in the Answer and the Reply brief, the examiner
also relies on Myers and Sann as additional evidence of 2
obviousness.
We affirm the rejection as to claims 1 through 5, 7, 9, 16,
2When a reference is relied on to support a rejection even
in a “minor capacity”, ordinarily that reference should be
positively included in the statement of rejection. See In re
Hoch, 428 F.2d 1341, 1342, n.3, 166 USPQ 406, 407, n.3 (CCPA
1970). Here, it appears that appellant has not been prejudiced
by the examiner’s reliance on the Myers patent and the Sann
publication, inasmuch as the examiner has entered appellant’s
Reply Brief which contains specific arguments with respect to
disclosures in these prior art references.
3
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