Appeal No. 1996-2436
Application 07/887,451
description of applicants' invention. Viewing the situation in this light, we find that the
examiner has mischaracterized the scope and content of the prior art. This alone
constitutes reversible error.
Second, Amer discloses administering a dietary supplement to a lower animal,
where the supplement comprises (a) a source of selenium; (b) butylated hydroxytoluene
(BHT) or butylated hydroxyanisole (BHA); and (c) $-carotene. Claim 1 on appeal recites a
method of administering a dietary supplement to an animal, where the supplement
includes (a) BHA or BHT; vitamin E; and beta-carotene. The record further reveals that
claim 1 is open to the inclusion of selenium. See the instant specification, page 7, lines 25
through 30; and the Appeal Brief filed December 2, 1994 (Paper No. 17), page 11, lines
11 through 13. On these facts, we think it apparent that the difference between the method
sought to be patented in claim 1 and the method disclosed by Amer is the recitation of
vitamin E in claim 1. That is, applicants' dietary supplement contains vitamin E which is
not disclosed or suggested within the four corners of Amer. The examiner, however,
mischaracterizes the difference between applicants' claimed subject matter and the
closest prior art. According to the examiner, Amer does not expressly disclose a method
of inhibiting two-stage skin carcinogenesis-promoting effects of carcinogens in an animal
but “generically” discloses reducing or
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