Appeal No. 1996-4133
Application 08/264,073
alcohol; about 6-10% by weight of an alkali metal salt of a saturated fatty acid gelling agent
having from about 8 to 22 carbon atoms; about 10-30% water and as the active ingredient,
an analgesic compound. The examiner refers to Column 3, lines 26-36 of Geria as
teaching that sodium stearate is the most preferred gelling agent and the "sodium
stearate" connotes the sodium salt of a mixture of fatty acids, of which stearic acid and
palmitic acid predominate and including small proportions of closely related fatty acids.
(Office Action mailed 12/13/94, Paper No. 3, pages 2-3). In addition, the examiner relies
on applicants disclosure that (id):
an illustrative soap gel-forming agent which can be used in the instant
invention is sold under the name RTD Sodium Stearate OP-65.
The examiner then concludes that (id):
[i]t would have been obvious to one having ordinary skill in the art to which
the invention pertains to use a commercially available soap gelling agent
such as RTD Sodium Stearate OP-65 as the soap gel-forming agent in
Geria for manufacturing convenience.
Even if we were to accept, for purposes of argument, that RTD Sodium Stearate
OP-65 was available as prior art and thus known to those or ordinary skill in this art at the
time of the invention, it remains that the examiner has provided no evidence, present in the
prior art, which would have reasonably suggested the substitution of the RTD Sodium
Stearate OP-65 for the soap gel-forming agent of Geria. It is the initial burden of the patent
examiner to establish that claims presented in an application for patent are unpatentable.
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