Appeal No. 96-3586
Application No. 08/262,848
14. With respect to claim 15, we further find nothing in
Wright which would either teach or fairly suggest "a time
release encapsulation" as claimed. Accordingly, we will not
sustain the rejection of claims 14 and 15 under 35 U.S.C. §
103 as being unpatentable over Wright.
Considering last the rejection of claim 15 under 35
U.S.C.
§ 103 based on the teachings of either Altman or Lawson, it is
the examiner's position that:
Various encapsulating materials were known in
the art at the time of the invention, including
materials usable for time release encapsulation. It
would have been within the general skill of a worker
in the art at the time of the invention to select an
appropriate encapsulating material based on the
intended use/application/mode of action of the
etching mixture. [Answer, page 5.]
We will not support the examiner's position. As the
examiner apparently recognizes, there is nothing in either
Altman or Lawson which either teaches or fairly suggests time
release encapsulation. Obviousness under § 103 is a legal
conclusion based on factual evidence (In re Fine, 837 F.2d
1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988)) and the mere
fact that, as a broad proposition, time release encapsulating
materials were known, does not provide a sufficient factual
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