Appeal No. 95-2441
Application 07/987,211
We again find that the examiner’s rejection is based in
the hindsight of appellant’s disclosure. No prima facie case
of unpatentability of Claims 1-13 and 26-29 under 35 U.S.C. §
103 in view of the combined prior art teachings having been
established in this case, we reverse the examiner’s
rejections.
3. New Ground of Rejection Under 37 CFR § 1.196(b)
We attach hereto a copy of Klose, U.S. Patent 5,190,775,
patented March 2, 1993, which issued from parent Application
07/706,859, filed May 29, 1991. Claims 1-12 of the patent are
drawn to methods of using the compositions of presently
appealed Claims 1-13 and 26-29. Both the patented methods for
administering the presently claimed compositions and the
presently claimed compositions themselves are explicitly
stated in the claims for use in administering or introducing
“a bioactive substance to the post-rumen portion of the
digestive system of a ruminant substantially without
introducing the substance to the rumen portion of the
digestive system” (Klose, patented Claim 1; Claim 1 of this
appeal). Were we to allow the presently claimed compositions
to issue without requiring a terminal disclaimer of
applicant’s patent rights thereto which would extend beyond
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