Ex parte BIENER - Page 9

              Appeal No. 1997-0003                                                                                          
              Application No. 08/342,614                                                                                    
              read of, nor observed, “any positive effect of Dead Sea water or salt on acne or seborrheic                   
              dermatitis.”  Declaration, attached to Paper No. 9.  We do not find this argument and the                     
              declaration to be persuasive.                                                                                 
                     First, Dr. Peter’s statements with respect to Dead Sea water is of no moment.  The                     
              rejection is over the use of the compositions disclosed by Biener to treat acne, not the use                  
              of Dead Sea water.  To that end, we point out that Biener (i) discloses the use of a                          
              composition which comprises a salt mixture, a therapeutic agent, and water, and (ii)                          
              expressly states that “[t]he invention’s salt mixture has a correspondingly positive effects                  
              [sic, effect] with acne.”  Biener col. 3, lines 28-29.  Second, we find that Dr. Peter’s                      
              statements are inconsistent with the specification which, as noted above, states that                         
              spontaneous healings of acne have been observed using Dead Sea water.  Specification,                         
              p. 3, para. 2.                                                                                                
                     The appellant argues that it would not have been obvious to one of ordinary skill in                   
              the art “to modify the Biener composition to include sodium chloride at a level of at least                   
              50% by weight, or least 67% by weight as required by claims 25 and 37.”  The appellant                        
              points to the Amendment After Final (Paper No. 6) wherein it is allegeldly state that “Dead                   
              Sea water and dried salts contain significantly less than 50 weight % of sodium chloride.”                    
              Brief, p. 5.                                                                                                  
                     We addressed the issue of the claimed levels of at least 50% by weight, and at                         
              least 67% by weight, sodium chloride, above.  Therefore, we comment only briefly on the                       


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