Appeal No. 1997-2828
Application No. 08/087,548
Background
The claimed invention is directed to pour-on formulations effective for the control
of internal and external parasites, particularly in cattle. The claimed compositions resist
wash-off during normal precipitation. Specification, page 2, lines 29-34.
35 U.S.C. § 103
Claims 1, 4-6, 9-11 and 13-18 stand rejected under 35 U.S.C. § 103 as
unpatentable over O’Sullivan, Asato and Maienfisch in view of Kieran.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established by presenting evidence that would have led one of ordinary skill in the art to
combine the relevant teachings of the references to arrive at the claimed invention.
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re
Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
Appellants submit that the examiner has not established a prima facie case of
obviousness with respect to the pending claims because there is “absolutely no cited
reference which describes any pour-on formulations using polybutene” as claimed.
Brief, page 9. The appellants argue that the Advisory Action dated July 16, 1996
(Paper No. 19) reflects the examiner’s mistaken belief that the polybutene ingredient is
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