Appeal No. 1997-3350
Application No. 08/522,164
(p. 10), appellant's claims require inclusion of PEG in an
amount of 0.25-12% by weight based on the composition as a
whole. The examiner then goes on to conclude that "Boucher
has a polyethylene [sic:PEG] content of 0.58-3.4% by weight
which is within the range of the polyethylene glycol required
by the instant application". The examiner does not explain
where he obtained these figures in Boucher or how he derived
them. Moreover, the examiner has failed to explain why any of
the specific PEG percentages given in the Boucher examples
would fall within the scope of appellant's claimed range,
based on surfactant weight, even if the Boucher percentages
happen to fall within a range calculated based upon the
composition as a whole.
In view of the foregoing, we remand the application to
the examiner and require that he take appropriate action
consistent with current examining practice and procedure to
resolve the deficiencies noted above with respect to the
question of obviousness relating to PEG content. The examiner
is further required to communicate his findings on this issue
to appellant for appropriate response, and if appellant
responds, to further respond as necessary via a supplemental
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