Appeal No. 95-3562
Application No. 08/110,996
examiner’s assertions, the examiner has cited Remington’s
Pharmaceutical Sciences which indicates that propylene glycol
is used as a solvent, preservative and a humectant.
The review of any prior art rejection, whether for
anticipation or obviousness, requires first that the claims
have been correctly construed to define the scope and meaning
the relevant limitations. Gechter v. Davidson, 116 F.3d 1454,
1457 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). As argued by
counsel for appellants at the oral hearing, the claims on
appeal herein expressly and literally exclude the presence of
an emulsifying agent by virtue of the claimed language “said
composition not containing an emulsifying agent.” See the last
line of appealed claim 16. Thus, whether or not the propylene
glycol added in the prior art composition functions as an
emulsifying agent, this compound is excluded by the claim
language “not containing an emulsifying agent.” Accordingly,
we cannot sustain the stated rejection of the appealed claims
for obviousness.
We further note that the examiner has made no argument
that it would have been obvious to a person of ordinary skill
in this art to have omitted the propylene glycol component
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