Appeal No. 1997-2338
Application No. 08/173,376
Only if that burden is met, does the burden of coming forward with evidence or argument shift
to the applicants. Id. In order to meet that burden the examiner must provide a reason, based
on the prior art, or knowledge generally available in the art as to why it would have been
obvious to one of ordinary skill in the art to arrive at the claimed invention. Ashland Oil, Inc. v.
Delta Resins & Refractories, Inc., 776 F.2d 281, 297, n.24, 227 USPQ 657, 667, n.24 (Fed.
Cir. 1985,. cert. denied, 475 U.S. 1017 (1986).
On the record before us, the evidence provided by the examiner in support of this
rejection fails to support a conclusion that it would have been obvious to one of ordinary skill in
this art to prevent insects from biting vertebrate species in the manner presently claimed. As
we have interpreted claim 6, the method consists essentially of topically applying a pesticide
composition to a surface of a vertebrate wherein the composition consists essentially of a
water swellable polycarboxylated homopolymer or copolymer and an effective amount of a
pesticide in a volatile non-aqueous solvent, drying the applied composition to form a surface
adherent non-aqueous film of the polymer and pesticide on the vertebrae surface and then
contacting the dried film with water to swell the film and promote the release of the pesticide
from the film. Appellant acknowledges that Chromecek and Amidon (Brief, page 4):
teach the use of carboxylated polymers in carrier systems for
bioactive agents. Chromecek describes carboxylated polymer
carriers wherein the hydrophilic functional groups of the polymers
are complexed to aluminum, zinc or zirconium. The Amidon et al.
reference is directed to polymer compositions and a method of
applying the compositions to a surface. Amidon=s method
comprises the steps of applying a low viscosity hydrophilic
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