Appeal No. 96-2897
Application 08/050,315
Devissaguet, col. 3, l. 24-27, and cols. 5-6, Example 2);
and/or lipophilic dyes or pigments (compare Devissaguet, col.
3, l. 28-29, and col. 6, Example 4). Only after determining
exactly what subject matter is encompassed by appellants’
claims should the examiner proceed to consider the
patentability of the claimed subject matter under 35 U.S.C. §
102 over subject matter the prior art describes and under 35
U.S.C. § 103 in view of the prior art teachings.
On this record, we are constrained to reverse the
examiner’s finding of anticipation based on an erroneous
interpretation of the functional language and scope of the
claimed subject matter. However, we remand this case to the
examiner for de novo interpretation of the meaning of the term
“active oil,” concomitant determination of the scope of the
subject matter claimed, and thereafter, reconsideration of the
patentability of pending Claims 36-39 under 35 U.S.C. §§ 102
and 103 in light of the prior art teaching of record.
3. Conclusion
We reverse the examiner’s rejections of Claims 36-39
under
35 U.S.C. § 102(b) as being anticipated by European Patent
274,961, published July 20, 1988, and under 35 U.S.C. § 102(e)
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