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
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