Appeal No. 1997-2338
Application No. 08/173,376
Claim Interpretation
Claim 6 is directed to a method for preventing insects from biting a vertebrate species
by topically applying the defined pesticide composition to a surface of the vertebrate, drying
the applied composition to form a surface adherent non-aqueous film on the surface of the
vertebrate and, thereafter, contacting the dried film with water to swell the film and promote
the release of the pesticide from the film. While the claim does not specify how the Adrying@
step is to be accomplished, we read the claim to require a positive drying step; whether it is
accomplished by direct action designed to remove the non-aqueous solvent from the
composition or whether the solvent is merely permitted to evaporate.
The rejection under 35 U.S.C. ' 112, first paragraph
Claims 6 - 7 stand rejected under 35 U.S.C. ' 112, first paragraph,
as being based on a disclosure which is not enabling for the prevention of insect biting. The
examiner urges that Ano support can be found in the disclosure for the contention that such a
method actual prevents biting." (Answer, page 3). In explaining the basis for this rejection,
the examiner states (id.):
There is no support for the claimed prevention of biting. The
composition is presented with [the] assumption of water contact as sweat, but
no support can be found in the disclosure for the contention that such a method
actually prevents biting. For one in the art to meet these requirements, more
information is required - Pesticide, copolymer or homolog, insect species,
hosts, adjuvants, and pesticide/adjuvant concentrations.
The Patent and Trademark Office (PTO) bears the initial burden of providing reasons
for doubting the objective truth of the statements made by applicant as to the scope of
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