Appeal No. 2001-1335
Application No. 08/843,582
effective amount limitation of appealed claim 28. In this
regard, the examiner urges that “the 0.05% of dioncophylline B in
the aqueous formulation (column 4, lines 10-13) would fall within
the effective range of the instant antimalarial composition for a
dosage of 0.01 mg/kg body weight to 100 mg/kg body weight (page
32 of the specification)” (answer, page 8). However, there is
absolutely no basis for the examiner’s belief that patentee’s
disclosure of 0.05% dioncophylline B would fall within the range
of antimalarially effective amounts disclosed by the appellants
on page 32 of their specification. In fact, it is clear that
Bringmann’s 0.05% value relates to the concentration of
dioncophylline B in his formulation and not to the total amount
of the dioncophylline B present in the formulation. It is this
total amount which must be known in order to assess whether it
corresponds to the amounts disclosed by appellants as being
antimalarially effective. Our study of Bringmann’s Example 1
disclosure reveals that it is impossible to know the total amount
of dioncophylline B which was present in the Example 1
formulation.
In light of the foregoing, it is apparent that the
examiner’s anticipation position is based on assumption and
conjecture. It is well settled that anticipation under section
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