Appeal No. 95-4485
Application 08/097,589
enabling because it does not disclose that shearing and shear
rates may be manipulated to avoid emulsion formation and does
not teach how to determine the shearing and shear rates needed
to avoid emulsion formation over the entire temperature and
ingredient ratio ranges in appellants’ claims (answer, page
3). This argument is not well taken because appellants’
claims do not require that the shearing or shear rate be
manipulated to avoid the formation of an oil-in-water
emulsion. The claims state that the shearing is effective for
not forming an oil-in-water emulsion, but this does not mean
that the claims require that the shearing be manipulated. The
claims are open to manipulating the ratio of oil to water,
rather than manipulating the shearing,
such that no oil-in-water emulsion is formed. Furthermore,
the examiner has provided no evidence or sound technical
reasoning which shows that one of ordinary skill in the art
could not have determined, through no more than routine
experimentation, shearing conditions at which no oil-in-water
emulsion is formed.
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