Appeal No. 2002-1644 Page 2
Application No. 08/602,498
C14 fatty acids in a total amount of from about 0.5% to about 5% by
weight of the composition.
21. A method of preventing mastitis in a dairy animal, comprising the step
of topically applying an antimicrobial composition to the teats of the
animal, the composition comprising (1) from about 60% to about 95%
of a lipophilic polar solvent selected from the group consisting of
propylene glycol, ethylene glycol, glycerol, and isopropanol, by weight
of the composition, and (2) at least one C8 to C14 fatty acid in an
amount of from about 0.5% to about 5% by weight of the
composition.
The references relied upon by the examiner are:
Kabara EP 0 530 861 A2 Mar. 10, 1993
The examiner also relies on evidence of the commercial sale of a product
described as DX-206. It is, however, unclear from the Answer and the Final
Rejection dated August 17, 2000 exactly what evidence is relied upon to support
this finding. In this regard, we note that appellants’ Brief includes an Information
Disclosure Statement (Tab 4) describing the events surrounding the sale of DX-
206, a letter dated November 2, 1994 (Tab F) highlighting the intent to market “a
new Post Dip with some unique properties”, a “Material Safety Data Sheet” (Tab
G) for DX-206, an invoice (Tab K) dated January 31, 1995 recording the sale of
DX-206 to Northside Dairy Supply, and records of the sale of DX-206 (Tab N).
Nevertheless, we note that “[a]ppellants admit that the topical application of DX-
206 to the teats of dairy cows to prevent mastitis is covered by all the claims on
appeal. Thus, should the on-sale issue be decided adversely to [a]ppellants,
[a]ppellants agree that the claims on appeal are not patentable as presently
drafted.” Brief, bridging paragraph, pages 4-5. Accordingly, we have reviewed
the evidence noted above, together with appellants’ admission and the
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