Appeal No. 2002-1644 Page 8
Application No. 08/602,498
compositions can be used in … (1) preservatives in food stuffs, (2)
cosmetic formulations, (3) pharmaceutical formulations (topical,
parenteral, intramuscular, and intravenous), and (4) veterinary
formulations, such as teat dips, eye medications, and ear
medications.”
In addition, appellants point out (Brief, page 14), Kabara discloses that
propylene glycol “should be used at any suitable level, with 5-60% by weight
being preferred, 10-30% being more preferred, and 20-25% being most
preferred.” Based on this disclosure in Kabara, appellants argue (id.), “[s]uch a
broad statement, which can relate to such diverse compositions as cosmetics
and pharmaceutical formulations, does not provide a teaching with respect to
teat dip compositions.” Instead, appellants argue (Brief, pages 14-15id.), one
interested in the art of teat dips, would look to Kabara’s exemplified teat dips
(examples 2-4) that contain significantly less propylene glycol than required for
the compositions of the claimed methods. Upon review of the facts in evidence,
we are compelled to agree with appellants. Accordingly, we reverse the rejection
of claims 14-16 and 21-24 under 35 U.S.C. § 102(b) as anticipated by Kabara.
THE REJECTION UNDER 35 U.S.C. § 103 over Kabara:
According to appellants (Brief, page 4), claims 14-16 will stand or fall
separately from claims 21-24. Therefore, we will limit our discussion to
representative independent claims 14 and 21. Claims 5 and 16 will stand or fall
together with claim 14 and claims 22-24 will stand or fall together with claim 21.
In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991).
According to the examiner (Answer, page 4), “[i]t would have been
obvious for one of ordinary skill in the art to [m]odify [Kabara to provide the] …
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