Appeal No. 96-2897
Application 08/050,315
39. The composition of Claim 36 wherein said
nonbiodegradable polymer is selected from the group
consisting of a vinyl chloride-vinylacetate
copolymer
and a methacrylic acid-methacrylic acid methyl
ester copolymer.
2. Discussion
Our decision on review of the merits of the examiner’s
rejection of the subject matter appellants claim under 35
U.S.C. § 102 over the subject matter Devissaguet describes
depends entirely on the interpretation to be accorded two
phrases in Claim 36 on appeal. The examiner’s answers and
appellants’ briefs emphasize arguable differences between the
claimed subject matter depending upon the respective limiting
capacity each attributes to the functional language and the
manner in which each interprets the scope of the encapsulated
“oily phase . . . containing an effective active oil”
component of the claimed composition (Examiner’s Answer
(Ans.), p. 3, last para., to p. 4, last para.). We hold that
the examiner erroneously interpreted the functional language
of the claims on appeal and erroneously interpreted the term
“active oil” of the same claims based on inadequate
consideration of the description of the invention in
appellants’ specification.
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