Appeal No. 95-4914
Application No. 08/036,116
the examiner, when the effective filing date for subject
matter claimed in a U.S. application is in issue, the foreign
application relied upon for priority under the above section
of the statute must be examined to determine, inter alia,
whether it describes within the meaning of 35 U.S.C. § 112's
first paragraph, what is claimed in the U.S. application. In
re Gosteli, 872 F.2d 1008, 1011, 10 USPQ2d 1614, 1616 (Fed.
Cir. 1989). Here, we agree with the examiner that the foreign
priority document in question does not describe (35 U.S.C. §
112, first paragraph) what is now being claimed in the present
application.
Appealed claim 1 requires, inter alia, a droplet
comprising "about 0.1 to 10% of a second component of an
emulsifier", and appealed claim 5 specifies that the
emulsifier is a phospholipid compound or a mixture of
phospholids. Even were we to agree that the disclosure in the
Israeli application at page 4, lines 11-14 describes a droplet
comprised of first, second and third components as in the
present application, no descriptive support is present in the
Israeli application regarding the claimed relative proportion
ranges for the respective first, second, and third components.
5
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