Appeal No. 2004-2339 Page 2
Application No. 09/900,596
a second component comprising a non-toxic nutrient in a water phase, the
second component being formed as an emulsion within the first component; and
a third component comprising a diluent added to the first and second
components, the diluent comprising a non-toxic, non-flammable, microorganism
assimilable carbon containing compound which is soluble in the first component and is
selected to facilitate viscosity stabilization for extended storage,
wherein the combination of the first, second and third components provide an
initial source for culturing microorganisms present in a pollution site being treated.
The sole issue before us for review is whether claims 1, 2, 5, 8, 11, 12, 16, 17,
and 19-23 are unpatentable under 35 U.S.C. § 102(b) on the basis of Freiesleben, U.S.
Patent Number 5,171,475. We reverse.
Discussion
Claim 1 is directed to a composition for treatment of pollution that comprises first,
second, and third components. The first component comprises a non-toxic, non-
flammable, microorganism assimilable carbon containing substance in an oil phase.
The second component comprises a non-toxic nutrient in a water phase. The third
component comprises a specified diluent. The second component is formed as an
emulsion within the first component and the diluent is added to the first and second
components.
The examiner refers the reader of the Examiner’s Answer to “prior Office Action,
Paper No. 5/13/03" for the facts and reasons relied upon to support the § 102(b)
rejection before us for review. Following the examiner’s instructions, we find from that
paper the examiner’s position is:
Freiesleben teaches water in oil microemulsions (title; abstract;
column 4, line 20). Organic solvents comprising 2-(2-butoxyethoxy)
ethanol are disclosed (claim 6). Compounds containing nitrogen are
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