Appeal No. 96-2897
Application 08/050,315
Second, Claim 36 defines the encapsulated “oily phase” as
containing (1) an “active oil” (Claim 36, l. 8) or (2) an “oil
having anti-free radical activity” (Claim 36, l. 8). See page
3, last full paragraph, of the Appeal Brief (Br.). At pages
5-6, bridging paragraph, of the Appeal Brief, appellants
define the term “active oil” with reference to the
specification as follows:
The presently claimed invention provides a cosmetic
composition of nanocapsules of a biodegradable polymer
which encapsulates an oily phase. The oily phase of the
presently claimed composition contains an effective
active
oil or an oil having anti-free radical activity. The
specification exemplifies an active oil as an oil which
screens out UV-A and/or UV-B radiation; an oil having
bactericidal and/or fungicidal activity, an oil with
humectant activity or an oil with anti-free radical
activity. See, page 6, line 19 to page 7, line 1 of
the specification.
Thereafter, appellants argued (Br., p. 6, first full para.)
that the oils Devissaguet discloses, i.e., “a vegetable or a
mineral oil, or any oily substance, for example olive oil,
benzyl benzoate, isopropyl myristate, glycerides of fatty
acids . . . , volatile oils, etc.” (Devissaguet, col. 3, l.
19-23), are not “active oil[s]” within the meaning of the term
in appellants’ claims.
Rather than interpret the term “active oil” in the claims
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