Appeal No. 2002-1644 Page 9
Application No. 08/602,498
required amount of propylene glycol solvent in order to provide optimum efficacy
as an antimircobial, freeze protected and non-irritating teat dip. Thus, added
ingredients of Kabara do not alter these essential characteristics of the methods
of use of the compositions.”
Claim 14:
In response to the rejection, appellants argue (Brief, page 13), “the
‘consisting essentially of’ language in claims 14 through 16 renders those claims
clearly outside the disclosure of [Kabara] ….” In this regard, appellants point out
(Brief, page 18) that Kabara “use[s] a fatty acid ester as their primary
antimicrobial agent, with the addition of other components, such as fatty acids, to
improve the antimicrobial activity of the compositions.” In contrast to Kabara,
appellants’ claim 14 does not require the presence of a fatty acid ester.
With reference to the Meister Declaration (Brief, page 19), appellants
explain that Meisters prepared four compositions, (1) the composition of
Kabara’s example 3, (2) the composition of Kabara’s example 3, modified to
contain 30% propylene glycol, (3) the composition of Kabara’s example 3,
modified to contain 60% propylene glycol, and (4) the composition of the present
invention. Meisters declares (Meisters Declaration, paragraph 8) that in a “cold
weather stability” test all of the formulations based on example 3 of Kabara froze
at 0°F, while those of the instant invention did not freeze at 0°F. Therefore,
Meisters concludes (id., paragraph 9), “[t]he formulation of the claimed invention
is therefore much more stable at low temperature than the formulations of
Example 3 of … [Kabara].” In addition, Meisters concludes (id., paragraph 10),
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