Appeal No. 95-2416
Application 07/892,484
contended that these calculations are in error and we see no
error therein.
Based on the above, we agree with appellant that there is an
inadequate factual basis for believing that Cartwright’s poultry-
powder regular food mixture inherently contains capsaicin in the
amounts required by the appealed claims. Thus, we reverse the
examiner’s rejection as it applies to composition claim 23 which
requires whole seed birdseed. Likewise, we reverse the
examiner’s rejection of method claims 20 and 24. These claims
require the positive method step of feeding birdseed having an
amount of capsaicin which is effective for repelling animals
having capsaicin sensitive receptors. As noted above,
Cartwright’s poultry-powder supplement is not fed directly to the
birds but is simply used as a food supplement which is mixed with
regular food. As relied on by the examiner, none of the
“secondary references” remedy the basic deficiencies in the
Cartwright disclosure with respect to appealed claims 20, 23 and
24. Hence we reverse the examiner’s rejections of these claims.
In summary, we affirm the examiner’s rejection as to claims
1 through 5, 7, 9, 16, 17 and 21. We reverse the examiner’s
rejection as to claims 20, 23 and 24. Accordingly, the decision
of the examiner is affirmed-in-part.
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