Ex parte LEANDER et al. - Page 6

                 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.                                                                                            

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