Appeal No. 1996-0682
Application 08/127,121
to these statements in their briefs, we accept them as being3
factual. In re Eskild,
387 F.2d 987, 989, 156 USPQ 208, 209-10 (CCPA 1968).
Based on the arguments in appellant’ brief at page 6, we
assume that Leander actually used a carrier other than
fractionated coconut oil in the described prior art creams.
(Appellants’ assignee and co-appellant Kurt Leander have not
favored this record by disclosing what specific ingredients or
carrier components were utilized in the creams described in
3The examiner’s statements are supported by disclosures
in U. S. Patent No. 5,104,656 issued to Seth et al.(Seth) on
April 14, 1992 and U.S Patent No. 4,837,019 issued to
Georgalas et al. (Georgalas) on June 6, 1989. See column 2,
lines 39-42 and examples 1 and 2 of Seth which describes an
ibuprofen-S cream utilizing 2 to 15 percent of fractionated
coconut oil as the oily component of an oil-in-water emulsion
used in a cream formulation, and the skin treatment cream
composition of example 1 of Georgalas which utilizes a
propylene glycol dicaprylate/dicaprate component referred to
as Miglyol 840. See the examiner’s discussion of these
references in the answer at page 6. Also see U.S. Patent No.
4,150,141 issued to Berger on April 17, 1979 which describes a
typical topical pharmaceutical cream dosage form for the
treatment of scabies as including Miglyol 812(caprylic/capric
triglyceride) as a component in the lipid phase of the cream.
See column 3, lines 49-60 of Berger. A copy of this reference
is attached to this decision. All the above cited prior art
establishes that, as of appellants’ filing date, fractionated
coconut oil was a well-known non-reactive excipient for
preparing creams in the pharmaceutical art.
6
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