Ex parte HAYNES et al. - Page 7

          Appeal No. 95-4890                                                          
          Application 08/035,002                                                      

          protein.  Under these circumstances, it is reasonable to shift              
          the burden of persuasion to applicants to establish that the                
          oil-in-water emulsion of claim 12 patentably distinguishes                  
          from the oil-in-water emulsion disclosed by Nichols in Example              
          V.  See In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34               
          (CCPA 1977).                                                                
               Applicants argue that the claim 12 oil-in-water emulsion               
          is intended for use as an ointment for treating burns or                    
          wounds, whereas the oil-in-water emulsion disclosed by Nichols              
          in Example V is described as a “laxative product”.  First, the              
          terms “an ointment for the treatment of burns or wounds”                    
          merely set forth the intended use for, or a property inherent               
          in, applicants’ composition.  Those terms do not differentiate              
          the claimed composition from those known to the prior art,                  
          i.e., oil-in-water emulsions containing the same percentages                
          by weight of oil, insoluble protein, and water.  In re                      
          Pearson, 494 F.2d 1399, 1403, 181 USPQ 641, 644 (CCPA 1974).                
          Second, assuming arguendo that the percent by weight of                     
          collagen solids in the Example V emulsion of Nichols does not               
          meet the terms of claim 12, nevertheless, it would have been                
          obvious to vary that amount per the teachings in Nichols,                   

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