Appeal 2006-2175
Application 10/122,855
We cannot sustain the Examiner’s rejection of claims 6, 10 and 13
over Panandiker.
The Examiner relies on Panandiker’s disclosure that non-ionic
surfactants should be present in the composition in amounts from about 1%
to about 40% by weight as providing support to optimize the propanediol
amount to include amounts within Appellants’ claimed range. Plainly, the
Examiner construes propanediol to be a non-ionic surfactant (Answer 6).
However, we find no disclosure in Panandiker to support the Examiner’s
proposition that propanediol is used as non-ionic surfactant. Moreover, we
find no reason to modify Panandiker composition disclosed in Example I to
include propanediol within Appellants’ claimed range. Panandiker’s
propanediol amounts in Example I vary from 10% to 14.5%, with 10% being
the lowest exemplified amount.
The Examiner points to Panandiker’s Example IV as teaching a lower
propanediol amount (i.e., 3.2%) (Answer 6). However, Panandiker’s
Example IV compositions need not contain any enzyme, particularly an
alpha amylase enzyme (i.e., Example IV states that “enzymes” are one of
several optional components that may compose the balance of the
composition). In contrast, Panandiker’s Example I explicitly recites that
amylase enzymes are included. In our view, the Examiner’s conclusion that
one of ordinary skill in the art would optimize the propanediol amount in
Panandiker’s Example I formulation to be between “0.1% to 7%”, “about
0.1% to about 5%” or “about 0.1% to about 1%” as is required in
Appellants’ claims 10, 13, and 6, respectively, is speculative at best.
For the above reasons, we reverse the Examiner’s § 103(a) rejection
of claims 6, 13, 10 over Panandiker.
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