Appeal No. 95-2924
Application 08/061,356
gleaned from Grohe that oleyl oleate would have been a suitable
replacement for isopropyl myristate in the aerosol formulation of
Purewal. As noted by appellants, although Grohe does disclose
spray or aerosol formulations, such preparations do not include
oleyl oleate.
Furthermore, appellants’ specification includes comparative
data which demonstrates that aerosol formulations comprising
oleyl oleate are superior to aerosol formulations comprising
isopropyl myristate with respect to membrane diffusion of the
active ingredient, sodium cromoglycate. The examiner has not
adequately refuted this objective evidence by noting that
Composition “C” according to the present invention also contains
sorbitan trioleate, which is not included in the claimed
composition. This is so because the amount of sorbitan trioleate
is a constant in Composition “A” and Composition “C”, and,
furthermore, the examiner has not explained why the presence of
sorbitan trioleate would undermine the superiority demonstrated
by oleyl oleate over isopropyl myristate.
The examiner cites Mygind in the rejection of claims 7-9 as
evidence of the obviousness of using a propellant mixture.
However, Mygind fails to supply the requisite teaching that is
missing in the combined disclosures of Purewal and Grohe.
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