Appeal No. 2003-0443 Page 2
Application No. 09/465,653
The references relied upon by the examiner are:
Deckner et al. (Deckner) 4,919,934 Apr. 24, 1990
Arora 5,223,257 Jun. 29, 1993
International Application:
Went et al. (Went) WO 90/07331 Jul. 12, 1990
GROUND OF REJECTION
Claims 1-7 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Arora in combination with Deckner and Went.
We reverse.
DISCUSSION
According to the examiner (Answer, page 3), Arora discloses a
composition comprising eucalyptus oil, alcohol in the amount of about 25 to
about 40 parts by volume per 100 parts by volume and an analgesic agent that
may be methyl salicylate. See Arora, column 1, lines 45-65. The examiner
recognizes, however, that Arora does not teach turpentine. To make up for this
deficiency the examiner relies on Deckner and Went. The examiner finds
(Answer, page 3) that Deckner discloses a cosmetic stick comprising a
cosmetically or therapeutically active agent, which include, inter alia, methyl
salicylate, turpentine oil and eucalyptus oil. The examiner also finds (Answer,
page 4) that Went teaches:
Using turpentine, methyl salicylate esters, and/or eucalyptus oil,
either alone or in combination, to enhance the penetration of a
topical anti-inflammatory and pain reducing agent. See p.[ ]2, line
2 – p. 7, line 21; p.[ ]17, line 20-13[sic]. The reference notes the
synergism effect of turpentine, methyl salicylate esters, and/or
eucalyptus oil on the primary anti-inflammatory agent, which again
suggests that these components have equivalent functions.
Based on this evidence, the examiner concludes (id.),
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