Appeal No. 95-2924
Application 08/061,356
sodium cromoglycate, and isopropyl myristate as one of many
possible surfactants. Purewal does not disclose appellants’
oleyl oleate as a surfactant in the aerosol formulation. To
remedy this deficiency in Purewal the examiner relies upon Grohe
as disclosing the “equivalency between isopropyl myristate and
oleyl oleate in terms of their spreading capacity of the
medicaments” (page 3 of Answer). Based on this equivalency of
isopropyl myristate and oleyl oleate as spreading agents, the
examiner concludes that the substitution of oleyl oleate for
isopropyl myristate in the aerosol of Purewal would have been
obvious to one of ordinary skill in the art.
The flaw in the examiner’s reasoning is that Purewal teaches
the use of isopropyl myristate as a surfactant in the aerosol
preparation whereas Grohe teaches the equivalency of isopropyl
myristate and oleyl oleate as spreading agents in liquid
formulations. Grohe does not teach the use of isopropyl
myristate and oleyl oleate as surfactants. Indeed, at column 5,
lines 52 et seq., Grohe expressly discloses a list of surfactants
which does not include either isopropyl myristate or oleyl
oleate. Consequently, since Grohe teaches oleyl oleate as an
equivalent for isopropyl myristate as a spreading agent in liquid
formulations, we cannot agree with the examiner that Grohe
evidences that one of ordinary skill in the art would have
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