Ex parte LEANDER et al. - Page 8

          Appeal No. 1996-0682                                                        
          Application 08/127,121                                                      

          person with ordinary skill in the art to utilize the                        
          fractionated coconut oil of Makino as a carrier for Leander’s               
          creams, because “Makino teaches that fractionated oil is a                  
          conventional excipient for body temperature-soluble solid                   
          preparations such as creams. . . . ”  See the answer at page                
          3.  Contrary to appellants’ arguments, the appealed                         
          “consisting essentially of” composition claims do not exclude               
          the presence of Makino’s required penetration enhancer                      
          component, because there is no evidence of record                           
          demonstrating that a penetration enhancer component would                   
          “materially affect the basic and novel characteristics” of                  
          appellants’ composition.  In re Herz,                                       
          537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976).                        
               We recognize that the claimed cream preparation must                   
          possess a pH value of between 2 and 6.  With respect to this                
          claimed requirement, Jacobsen teaches a pharmaceutical                      
          preparation incorporating the claimed active ingredient                     
          (Jacobsen, page 2), which is preferably buffered to a pH in                 
          the range of 2.5 to 6 to 1) increase the efficacy of the                    
          composition and 2) improve the stability of the composition.                
          See Jacobsen at page 4.  We agree with the examiner that one                

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next 

Last modified: November 3, 2007