Appeal No. 1995-4903
Application No. 07/926,016
2,diphosphonate anions utilized as anticalculus agents. Each
reference discloses bis(halophenyl) antimicrobial agents.
However, based upon the above teachings we cannot agree with
the examiner that the claimed invention is anticipated by
either Hayes(‘504) or de Vries. In order to arrive at the
claimed subject matter a person having ordinary skill in the
art would have to carefully pick and choose and combine
various disclosures among the teachings of both Hayes(’504)
and de Vries to obtain an oral care composition comprising the
two required components of the claimed subject matter in
effective amounts. While some picking and choosing may be
entirely proper in making an obviousness rejection under 35
U.S.C. § 103, it has no place in making a rejection under 35
U.S.C. § 102(b) for anticipation. See In re Arkley, 455 F.2d
586, 587, 172 USPQ 524, 526 (CCPA 1972). We find that each
reference does not provide a disclosure with sufficient
specificity to constitute a description of the claimed
composition within the purview of 35 U.S.C. § 102(b). See In
re Schaumann, 572 F.2d 312, 317, 197 USPQ 5, 10 (CCPA 1978).
Accordingly, we shall not sustain either rejection of the
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